Report on Uokik Activities in 2017

Report on UOKiK activities in 2017

Warsaw 2018 TABLE OF CONTENTS UOKIK – KEY INFORMATION 4

FOREWORD 6

COMPETITION CONSUMER LEGISLATIVE PROTECTION 8 PROTECTION 30 WORK 62 1.1 Calendar of events 10 2.1 Calendar of events 32 3.1.1 National legislation 62 1.2 Competition-restricting 2.2 Consumers' collective interests 3.1.2 International legislation 70 practices 14 and standard contractual 3.1.3 Preliminary issues 72 1.3 Contractual advantage 22 clauses 37 1.4 Control of concentrations 23 2.3 Supervision over The Trade SOCIAL SURVEYS AND 1.5 Court judgements 26 Inspection Authority 45 MARKET ANALYSES 75 1.6 State aid 27 2.4 Product safety and market surveillance 48 INFORMATION AND 2.5 Laboratories 52 EDUCATIONAL ACTIVITIES 76 2.6 Fuel quality control system 52 2.7 Out-of-court consumer dispute INTERNATIONAL resolution 54 COOPERATION 80 2.8 Court judgements 55 3.4.1 Consumer protection 80 2.9 Cooperation with consumer 3.4.2 Competition protection 83 organisations and consumer ombudsmen 58

POSTSCRIPT 85 UOKiK – key information

About UOKiK UOKiK IN NUMBERS – 2017

The President of the UOKiK is a central governmental authority. The powers of UOKiK are laid down in the Act of 16 February 2007 on Compe- tition and Consumer Protection.* The Authority’s activities are financed from the state budget.** PLN MN PLN MN BUDGET IN PENALTIES The UOKiK’s top priority imposed on traders, of which: is to ensure the highest possible level of consumer welfare by effectively PLN 136.9 mn for competition-restric- protecting competition and the in- ting practices: the highest penalty: terests and rights of consumers, while PLN 60.7 mn respecting the principles of procedural fairness in relations with entrepreneurs. PLN 78.8 mn for practices that violate collective consumer interests: the highest penalty: PLN 25.8 mn Management in 2017 President of UOKiK: Marek Niechciał

Vice President of UOKiK: Dorota Karczewska (consumer protection)

Vice President of UOKiK: Michał Holeksa (competition protection)*** EMPLOYEES DECISIONS including including Director General:

Maciej Jabłoński 193 lawyers 703 decisions in consumer protection

72 economists 229 in competition protection

* Consolidated text, Journal of Laws of 2018, 36 chemists item 798. ** In 2017, UOKiK also carried out activities financed from the 29 European budget. food technologists *** Bernadeta Kasztelan-Świetlik was the Vice President until 27 June 2017. 12 biotechnologists

4 anti-competitive ACTIVITY AREAS agreements between traders

contractual state aid advantage

abuse market of a dominant concentration position COMPETITION PROTECTION

national enforcement promotion research legislation and international of the law and education and analyses cooperation

practices that CONSUMER out-of-court violate collective PROTECTION consumer dispute consumer resolution interests

product safety prohibited and quality of contract terms services

5 In 2017, the competence of UOKiK was extended in connection with the entry into force of two laws: the Act on out-of-court consumer dispute resolution and the Act counteracting unfair use of contractual advantage. The introduction of the new laws was accompanied by notification activities of the Office addressed both to consumers and traders. >>

6 FOREWORD

The first act introduced an amicable on mortgage loans, which compre- Consequently, in 2017, UOKiK issued dispute resolution system adjusted hensively regulates issues related to a pilot programme for whistleblow- to EU regulations. The new provi- offering such products, entered into ers that comprises anonymous noti- sions make it easier for consumers to force. As postulated by UOKiK, the fications in this regard. A number of deal with a conflict with traders aris- act also specified the issue of adver- national trainings devoted to detecting from rejected complaints. Within tising consumer loans. The financial ing tender collusion has also been or- the boundaries of the new compe- sector continues to be one of the pri- ganised and carried out. The purpose tence vested in the Office, UOKiK now ority consumer protection areas. In of these activities is to increase the keeps a register of entities authorised 2017, UOKiK has carried out activities inflow of information on irregular- to carry out amicable dispute reso- pertaining to broadly understood al- ities and deal with unlawful practices lutions and monitors their activities. ternative investments, unit-linked life in a more efficient way. As in previ- Moreover, a special information point insurance, mortgage loans, consumer ous years, the Office analysed many was established to provide advice to loans, and pyramid schemes. applications concerning market consumers and traders. Out of court concentration to prevent emergence methods were promoted as part of the What is more, the Office’s activities of entities with a market power that campaign “Make friends with arbitra- focused on the safety of the most could be harmful to the competition. tion!”. Moreover, traders who through vulnerable social groups: children As for state aid, it should be emphas- its conduct gave rise to the popular- and seniors. As in previous years, the ised that the case concerning a mul- isation of amicable procedure were Trade Inspection Authority carried timillion support from the operator of awarded for the first time. out a number of inspections on chil- the Wielkopolska Highway gave rise dren clothes and toys. Together with to a settlement which is beneficial for The Act on contractual advantage partners from the Visegrád Group as Poland. There were also intensive introduced certain solutions on the well as national customs offices, cer- works on streamlining the reporting agri-food market. UOKiK is now also tain activities were carried out on the system “SHRIMP”. empowered to deal with unfair com- border which allowed to do away with mercial practices consisting in tak- hundreds of thousands of toys that do As in the previous years, in 2017 the ing advantage of the position by the not meet the safety standards. UOKiK Office was active on an international stronger party to the contract. The also conducted proceedings in con- forum. The Office hosted meetings amendment to the legal provisions nection with unfair practices carried involving Polish authorities and the was accompanied by meetings with out by traders that mainly concern Directorate General of the European trader and lawyers as well as launch- senior customers. They comprise Commission for Competition. Coope- ing of an online platform devoted to various exhibitions and impersonating ration with national partners was the subject. Moreover, the Office has current service providers. The protec- strengthened as well, in particular commenced its first explanatory pro- tion of seniors was also devoted to an by shaping the legal environment ceedings in connection with notific- annual conference on the occasion of that favoured consumers and free ations received by the office. World Consumer Rights Day. competition.

In 2017, there were also new obliga- As for competition protection, the in- tions imposed on traders dealing crease in the traceability of prohibited with the financial market. The Act agreements continues to be a priority.

7 1.1 1.2 1.3 Calendar of events Competition-restricting Contractual advantage practices

8 1.4 1.5 1.6 Control of concentrations Court judgements State aid

COMPETITION PROTECTION

UOKiK’s activities concern combating any unfair practices which have a negative impact on the condition of competition, which is a foundation for market growth. The Office removes anti-competitive agreements between traders, abuse of a dominant position, along with an unfair use of a contractual advantage. It also controls concentration of undertakings and monitors state aid.

9 1.1 1.2 1.3 Calendar of events Competition-restricting Contractual advantage practices

FEBRUARY MARCH APRIL

08.02 07-08.03 10.04 Economy of the competition law Visit of the Directorate General Commencement of the – the commencement of a series of the European Commission whistleblower programme of workshops for Competition The programme consists of anonym- The first meeting devoted to this sub- A meeting between Polish authorities ous notifications from persons aware ject and organised by UOKiK, Com- with a delegation of the Directorate of prohibited arrangements made pass Lexecon, and the Competition General for Competition. The visit between traders. The purpose of the Law Association (SPK). Subsequent revolved around key state aid issues programme is to increase the tracea- meetings were held in June and Oc- pertaining to Poland and conducted bility of collusion on the market. tober. before the EC.

16.03 10.04 Guidelines on limitation Launch of the online platform of the right of access www.konkurencja.uokik.gov.pl UOKiK has come up with a manual The website is a compendium of the for submitting applications for limit- anti-trust law. It provides information ing the right of access in the proceed- on, inter alia, leniency and whistle- ings, e.g. on competition-restricting blower programmes. practices and imposition of fines. The Guidelines have been published on the Office website.

10 1.4 1.5 1.6 Control of concentrations Court judgements State aid

MAY JUNE

10.05-12.05 20.06 21.06 Meeting of the International Meeting on a contractual advantage Explanatory proceedings Competition Network (ICN) The meeting with traders in connec- with regard to online trade platform – a reward for UOKiK tion with the upcoming entry into force The purpose of the proceedings is to The President of UOKiK received an of the Act on counteracting the unfair verify whether Allegro favoured its award of the World Bank and the ICN use of contractual advantage.1 The own online store at allegro.pl. In order for the best information and educa- role of UOKiK and of the Agricultural to obtain evidence, UOKiK conducted tional project in the field of competi- Market Agency (currently: National a search of the company at the turn of tion law. The prize was awarded for Centre for Agricultural Support) was June and July. the guide for companies operating in discussed. the water and sanitation industry. 27.06 20.06 Entry into force of the Launch of the online platform Act on Private Enforcement2 11.05 www.przewagakontraktowa. The new law allows consumers and Concentration – shopping centres uokik.gov.pl traders to pursue private claims in the A consent to take control by Echo The platform describes contractual event of losses resulting from prohib- Polska Properties over several shop- advantage in the form of questions, ited agreements or abuse of a domi- ping centres which was granted after answers, and infographics. nant position. a change in the concentration application (decision DKK-74/2017). In connection with the market research scheduled by UOKiK, the company abandoned its plan to take over the 1. The Act of 2. The Act of 21 April 15 December 2016 on 2017 on Private shopping centre in Kalisz. Counteracting the Unfair Enforcement (Journal of Use of Contractual Laws of 2017, item 1132). Advantage in Trade in Agricultural and Food Products (Journal of Laws of 2017, item 67).

11 1.1 1.2 1.3 Calendar of events Competition-restricting Contractual advantage practices

JULY AUGUST SEPTEMBER

12.07 18.08 06.09 The Act on Counteracting the Unfair Contractual advantage – the first Commencement of trainings Use of Contractual Advantage explanatory proceedings “Competition Law in Public The Act in question grants UOKiK new The commencement of the first ex- Procurement Tender” competence in counteracting prac- planatory proceedings based on new A meeting in Opole marked the be- tices of this type. The tasks were as- rights in the scope of contractual ad- ginning of 32 free-of-charge trainings signed to the Branch Office of UOKiK vantage. The purpose of the procedure for the employees of central and local in Bydgoszcz. was to check whether sugar produ- government administration that were cers resort to practices involving an conducted until November 2017 all 17.07 unfair use of contractual advantage across Poland. Over 1360 people re- Commitment to give back fees against the suppliers of sugar beets. ceived trainings. Moreover, an e-learn- charged unjustly – the energy ing platform has been launched. market 24.08 The case concerned Heat Energy En- Regaining state aid – decision terprise Termowad Sp. z o.o. which of the European Commission was charged by UOKiK with an abuse The decision on compensation paid of a dominant position by defining the to Autostrada Wielkopolska S.A. The excess of ordered heat power in an Commission shared Poland’s position, incorrect way. Decision of the Office and namely that the compensation (RKR-5/2017) took into consideration was excessive. The operator of the A2 the company’s commitment to refrain Highway will have to give back a total from this practice and give back any of PLN 895 mn of undue state aid (with and all fees that were charged unjustly. interest).

12 1.4 1.5 1.6 Control of concentrations Court judgements State aid

OCTOBER NOVEMBER DECEMBER

04.10 7.11 28.12 Judgement of the Supreme Court Visit paid by representatives of the The highest fine in the year for – sustaining the fine for prohibited Directorate General of the European anti-trust practices agreements Commission for Competition The issue concerned a collusion be- The Supreme Court dismissed the The purpose of the meeting was hold tween the manufacturers of wood- cassation appeal against the decision a general discussion on matters per- based panels used e.g. in furniture of UOKiK of 2011 concerning the containing to the protection of competition production (DOK-3/2017). The compa- clusion by Inco Group of agreements in Poland and in cooperation with the nies arranged prices with each other with the distributors of household EC in this regard. and exchanged confidential informa- chemicals and garden fertilisers. Con- tion, which affected the competition. sequently, a fine of over PLN 2 mn was 13.11 The arrangement comprised five sustained. Workshop: “State aid – recent traders, with the highest fine of over legal condition and issues PLN 60 mn being imposed on Krono- 06.10 pertaining to the subject” span Szczecinek. The fines imposed Meeting of the Working Group of An event for experts from central and on the collusion participants totalled the European Commission and regional institutions dealing with state over PLN 135 mn. Had it not been for of Member States on Implementation aid. leniency, the fine would have amount- of State Aid Modernisation ed to PLN 200 mn and would be the It was a meeting of a group which second highest fine ever imposed by serves as a platform for exchanging in- UOKiK. formation and experience on the implementation of state aid modernisation.

04.10 Conditional approval for concentration on the electricity market The case concerned taking control over EDF Polska by PGE. UOKiK adopted a condition that eliminates the threat of restricting competition on the market (DKK-156/2017). 13

1.1 1.2 1.3 Calendar of events Competition-restricting Contractual advantage practices

1.2 Competition-restricting practices

Competition-restricting practices e.g. result in an order to discontinue comprise illegal action taken by a harmful practice and a fine imposed New proceedings – 2017 traders leading to a disruption in the on a trader. It is also possible to make mechanisms of a free market. They an amicable settlement of the pro- can take the form of an arrangement ceeding with a commitment decision. of at least two independent traders Traders may also make requests for or abuse of a dominant position by decreasing the amount of potential fi- 87 1 a trader on a given market. nancial sanctions through a procedure explanatory decision enforcement control called “voluntary submission to pen- Anti-trust arrangements can be as alty”. This essentially means pleading follows: guilty to the charges and waiving their horizontal (the most severe ones are right of appeal against the decision. cartels) – if they pertain to arrange- UOKiK encourages parties involved in 9 1 on imposition of a fine* ments made by competitors, i.e. trad- anti-competitive arrangements to use anti-trust proceedings concerning competition- * Proceedings concerning ers conducting operations whose level leniency or leniency plus programmes -restricting practices, a fine to be imposed on of trade of goods/services is the same which are highly beneficial for them a trader for failure to comply, of which: horizontal or default in complying, (e.g. manufacturer-manufacturer), or because it allows them to decrease the agreements - 3 with a decision, for failure vertical – if they concern arrange- fine or be relieved from it altogether. abuse of a dominant to provide the requested information to the Office position - 6 ments between traders conduct- or for provision of false or ing operations at different levels of Prior to issue of the decision confirm- misleading information, for failure to cooperate in the trade (e.g. manufacturer-seller). ing the practice or imposing a fine, course of an inspection. The subject of arrangements may in- UOKiK presents detailed justification volve e.g. fixing prices, tender offers of charges to the trader (SUZ). This Initiated proceedings in years 2015-2017 and market division.3 allows the party to respond to these on prohibited arrangements before the proceedings are concluded. on abuse of a dominant position The law also prohibits abuse of a dominant position in the event of traders The proceedings against a trader are 23 holding a significant market power. usually preceded by explanatory pro- The practices of this type can take the ceedings which aim at an initial iden- form of unfavourable cooperation con- tification of a possible violation. Within 14 ditions, getting rid of competitors or the course of explanatory proceedings, 11 preventing new traders from entering or regardless of any other activities in 7 6 the market.4 progress, UOKiK may issue a compet- 3 ition protection call (so-called soft UOKiK monitors the market and call). This means in practice a call to 2015 2016 2017 analyses any and all warnings about provide explanations or refrain from In recent years, the general number of pro- potential irregularities. On this basis, a specific activity. The interventions of ceedings concerning anti-trust matters was the Office carries out proceedings, this type are applied in case of activ- on a decline. This results from soft calls made which are one of the available inter- ities which are not so harmful. Those to entrepreneurs in cases of less serious law infringements. ventions. These proceedings may interventions allow to quickly remove

14 1.4 1.5 1.6 Control of concentrations Court judgements State aid

Highest fines per decisions – 2017 – competition-restricting practices PLN mn The Act on 136.9 total fines private enforcement UOKiK decisions on competition-restricting practices do not concern DOK-3/2017: DOK-3/2017: compensation paid to injured parties for unlawful practices. Pursuing civil 60.7 PLN mn 39.3 PLN mn law claims is now facilitated by the Act Kronospan Szczecinek Sp. z o.o. Kronospan Mielec Sp. z o.o. on private enforcement of competition law, which entered into force on June for the collusion of manufacturers for the collusion of manufacturers 2017. 5 The new law implementing the of wood-based panels of wood-based panels EU directive6 has been created by the Ministry of Justice in cooperation with UOKiK. Anyone who has suffered a loss as a result of unlawful practices will be able to bring an action, including DOK-3/2017: consumers, counterparties, and competitors of the undertakings which have 19.8 PLN mn 17.1 PLN mn infringed the provisions of competition Pfleiderer other fines in total law. The claims will be examined by re- Wieruszów Sp. z o.o. gional courts, regardless of the value of the claim. The claims may concern, for the collusion of manufacturers inter alia, any practices which UOKiK of wood-based panels regards in its decisions as anti-competitive agreements, abuse of a dominant position, and activities not subject to the proceedings of the Office. The issue of private enforcement was discussed in one of the workshops co-or- 3. Examples of competi- 4. A sample catalogue such activities from the market in tion-restricting practices of practices constituting ganised by UOKiK as part of the series comparison with official proceedings. are specified in Art. an abuse of a dominant on economy in the competition law. 6 sec. 1 of the Act of 16 position is given in Article Traders usually comply with calls February 2007 on com- 9 (2) of the ACCP. made by UOKiK. The Office may also petition and consumer 5. The Act of 21 April 2017 protection (Journal of on Private Enforcement conduct an inspection or search in the Laws of 2018, item 798, (Journal of Laws of 2017, registered office of a trader in order to as amended, hereinafter item 1132). referred to as “ACCP”). 6. The Act implements obtain evidence. However, the law provides Directive 2014/104/EU of for limited exceptions the European Parliament to the general ban, and of the Council of Leniency and leniency plus so-called agreements of 26 November 2014 on programme minor importance and certain rules governing block exemptions. All the actions for damages regulations of the Council under national law for in- An entrepreneur who has entered into of Ministers concern- fringements of the com- ing the exemptions of petition law provisions of an anti-competitive agreement may certain agreements the Member States and seek a full exemption from or reduc- from the general ban on of the European Union competition-restricting (OJ EU 349, 5.12.2014, tion of fines. In addition to admitting to agreements are available p. 1-19). participation in the agreement, the en- on UOKiK’s website. trepreneur must provide information

15 1.1 1.2 1.3 Calendar of events Competition-restricting Contractual advantage practices

Issued decisions – 2017 Other activities – 2017

on concerning competition-restricting 19 practices 592 8 official number of controls horizontal agreements notifications performed 13 received

abuse of a dominant 6 position PLN mn 1862 9 136.9 total fines received warnings number of searches from the market, performed including under identified tender the whistleblower collusions 7 programme

accepted 1 commitments

consideration of EU 1 regulations 57 11 new soft calls to detailed justifica- entrepreneurs tions of allegations considering under anti-trust leniency 3 proceedings

and evidence indicating the existence Application of EU competition law Overview of activities – illicit of an illicit practice.7 Of all decisions agreement issued in 2017, 3 decisions took into The ban on competition-restricting account the information obtained practices results not only from Pol- Whistleblower programme through leniency. ish anti-trust laws, but also from the UOKiK’s top priority is still to increase provisions of the Treaty on the Func- the rates of detection of illicit agree- There is also an additional solution tioning of the European Union (“TFEU”, ments, especially between competi- for collusion participants – leniency “Treaty”). When entrepreneurs affect tors. These are competition-restrict- plus programme. With this solution, through their action the trade between ing practices which are the most the entrepreneur who files the second EU Member States, EU regulations harmful for the economy, directly or subsequent application may receive impose the obligation on the authori- increasing the prices of products and an additional reduction of the fine by ties and courts of the Member States services. Due to their secret nature, 30%, on condition that it informs the to apply the Treaty directly (Articles it is very difficult to spot them – of- Authority of another collusion in which 101-102 TFEU) in parallel with the pro- ten there is lack of evidence, such as it was also involved. In the latter case, visions of national competition law. In contracts or written arrangements. the entrepreneur will have the status 2017, UOKiK initiated one proceeding In order to obtain such evidence, the of the first applicant and may be of- in which it applied in parallel Polish Office initiated in 2017 a whistleblower fered total immunity from fines. and EU regulations, and made one programme which consists in obtain- decision in this respect. ing anonymous information from persons aware of such collusions. There

16 1.4 1.5 1.6 Control of concentrations Court judgements State aid

The number of leniency applications Searches* EXAMPLES

2017 7 2017 9 1. The search of the registered office of the Allegro Group – in connection with explanatory proceedings the Office has 2016 3 2016 5 received numerous complaints in which various undertakings pointed out the changes made by the Company to its 2015 2 2015 2 allegro.pl sales platform. The changes in question allegedly resulted in the products sold on this platform by the of- 2014 10 2014 3 ficial Allegro store always being listed as “best match” in search results. The purpose of the proceedings is to verify 2013 5 2013 0 whether the Company favoured its own online store at allegro.pl.

2012 16 2012 8 2. Searches in the registered offices of fitness gym chain and premises of Bene- fit Systems. The collected evidence in- 2011 2 2011 5 dicates that a dozen or so traders could have resorted to competition-restricting * Indicates the number of proceedings in which a search agreements which consist in dividing the was conducted. Until 17 January 2015, searches could be conducted in the course of control only. A new law market into activities regions. entered into force on 18 January 2015, under which a search is now separated from a control. 3. The search of the registered office of Veolia Energia Warsaw on possible col- is a special phone number and e-mail to the chapter concerning information lusion by traders dealing with thermal address which allow whistleblow- and educational activities. energy production, supply and trade. ers to send alarming news. For detailed information, please visit www. Evidence from conducted searches konkurencja.uokik.gov.pl. A search of company premises is a tool 7. For detailed information, please visit the which is used in situations where it is UOKiK website: http:// Competition law in public procure- suspected that the entity in question is uokik.gov.pl/program_ lagodzenia_kar2.php ment – an educational project in possession of evidence which may 8. The project is co- In 2017, the Authority also carried be relevant to the case. It may only be financed by the European Social Fund as part of the out a number of on-site trainings conducted upon court authorisation. Operational Programme under the project “Knowledgeable A search is usually assisted by Police Knowledge Education Contracting Authority – Competition officers. In the course of a search, the Development 2014-2020. Law in Public Procurement Tenders”. undertaking is under an obligation The purpose of the project was to to grant the employees of the Office increase the awareness of central access to its buildings and premises and local government administration as well as to make available all docu- staff in terms of tender collusion.8 ments and data carriers. In 2017, the Moreover, a special e-learning plat- Office has already used this option form was launched. For detailed in- nine times in order to obtain the neces- formation on this matter, please refer sary evidence.

17 1.1 1.2 1.3 Calendar of events Competition-restricting Contractual advantage practices

Quality management systems – ISO phone calls. Presidents and mem- Collusions between traders who com- bers of management boards, along pete with each other may also involve UOKiK imposed fines with commercial sale directors would a market allocation scheme, e.g. ac- totalling over meet e.g. in the registered offices of cording to customers. the companies, at fairs, and airports. Thanks to the exchange of confidential Such practices were identified with information, they got rid of the uncer- Dekra Certification and Istituto Itali- tainty as to the conduct of their rele- ano del Marchio di Qualita (IMQ) – vant competitor. Consequently, they companies which offer management decreased the level of competition system certification services. Insti- between each other and strengthened tutions which were interested in ob- their negotiation stance in relation to taining ISO certificate submitted a re- recipients. UOKiK imposed fines total- quest for proposal to several traders PLN mn on the ling over PLN 135 mn on the companies providing such services. At the same companies involved involved in the collusion,10 excluding time, they asked to specify another in the collusion Swiss Krono which contributed to the certification unit to which they could identification of the collusion as part also submit this request for proposal. of the leniency programme. It should Dekra and IMQ agreed that they would be indicated that the furniture indus- recommend each other to those cus- able to take advantage of the leniency try generates nearly 2% of the Polish tomers whom one of the companies programme as both were fully cooper- GDP, which is why the collusion could was willing to acquire. At the same ating with UOKiK. The decision of the have had a negative impact on the Pol- time, they arranged which company Office is final. ish economy. The proceedings in this would submit a counter bid, i.e. a pro- matter were also carried out based posal with a higher price that would Wood-based panel market on EU regulations, with the final de- be less appealing to the customers. In In 2017, UOKiK made a decision on cision having been consulted with the some cases, companies agreed, in the manufacturers of wood-based panels European Commission. The gathered first place, which entities the services used e.g. in furniture production (DOK- material showed that the practices ap- would be sold to, and only then were 3/2017). The collusion comprised plied by the traders could have affect- they exchanging information about 5 traders: Kronospan Szczecinek, ed trade between EU Member States. the expected prices. The prohibited Kronospan Mielec, Pfleiderer Group, The company lodged an appeal with the practice lasted 4.5 years. UOKiK ob- Pfleiderer Wieruszów, and Swiss Kro- Court of Competition and Consumer tained evidence of the collusion as no. For almost 4 years, these compa- Protection (SOKiK). a result of a search conducted in the nies fixed prices and exchange con- registered office of Dekra and that of fidential information, e.g. about the Public transportation IMQ’s branch in Poland, and thanks date on which the prices would rise and Collusion between tender participants to cooperation with traders as part sales volume. Warnings from the mar- may take many forms. Traders very of the leniency programme. Dekra ket played a crucial role in detecting often resort to a mechanism of bid Certification avoided the sanctions the collusion. The Office gathered the submission and retraction, i.e. can- altogether because it was the first necessary evidence as part of control cellation by the winner of the tender to company to have applied for leniency. with a search of the registered offices sign the contract with the contracting IMQ made the same decision several of the traders. Detailed information on authority, which means that the con- days later, which is why the amount the collusion has also been provided tracting authority needs to conclude of the fine in this case totalled PLN by Swiss Krono as part of the leniency an agreement with an entrepreneur 461 thousand, which was half of the programme. As was demonstrated by offering a higher price. Traders ar- amount the company would have oth- the Office, the traders resorted to illicit range among each other which of the erwise paid.9 Both companies were arrangements as part of meetings of bidders is about to win the next tender.

18 1.4 1.5 1.6 Control of concentrations Court judgements State aid

In 2017, UOKiK found that a tender for submission and retraction was also Services for the military public transportation in Zgorzelec the case for two undertakings involved The discovery of collusions, warnings featured a collusion between bidders. in the sale of computer equipment from tender organisers play a crucial The proceedings were initiated in con- and software. The proceedings con- role as they are able to observe di- nection with a complaint from the Re- cluded in 2017 showed that Optimus rectly any alarming action on the part gional Police Headquarters. Following from Sieradz and BKH-System from of the bidders. Thanks to a complaint the analysis of the materials obtained, Żagań tried to influence the results submitted by the Military Economic the Office concluded that two under- of 4 tenders that took place in the Department in Poznań, UOKiK un- takings: Bieleccy from Bogatynia and years 2013-2015. Their activities had dertook activities in connection with FHU Bielawa from Leśna (Lower Silesia a negative impact on two tenders (for a tender for seasonal boiler service. Province) have engaged in collusion. In Łódź and School Complex in Świecie). The proceedings of the Office showed the present case, the undertakings have Once one of the undertakings won the that there has been a tender collusion applied a mechanism of bid submission tender, it would intentionally fail to between Megatherm, Śmigiel Prze- and retraction. If it turns out that their comply with official requirements. mysław Multi-Service Enterprise, and bids were among the two best ones, As a result, the contracting authority “Śmigiel” Multi-Service Enterprise. the winner of the tender subsequently was forced to choose a bid that would The first two undertakings took part retracted its bid on purpose, in order be less beneficial for it. In other cas- in the tender as a consortium. The for the municipality, i.e. the contract- es (the municipality of Kłodzko, the lowest bid was made by “Śmigiel”. The ing authority, to be forced to select the Marshal's Office in Toruń), the par- Office found that the company failed second-best (and therefore more ex- ticipants of the collusion did not win to complete the official requirements pensive) bid submitted by the second of the tenders. However, it was proved by on purpose. Thus, the contracting the two colluding undertakings. The dif- UOKiK that they jointly prepared their authority chose the next in order and ference between the two bids amounted bids. This is evidenced by e-mails be- the more expensive offer of the con- to more than PLN 300 thousand. UOKiK tween the undertakings, which were sortium. The Office imposed a penalty imposed a fine of nearly PLN 130 thou- found by the Office during inspections on the participants in the tendering sand on the initiator of the practice11. at their registered offices. The Office collusion amounting to almost PLN The decision is final. of Competition and Consumer Pro- 80 thousand. The traders appealed tection imposed fines on the partici- against the decision. Computer equipment pants of the collusion totalling nearly and software PLN 57 thousand. The undertakings The Tactical Aviation Base in Świd- UOKiK found that a mechanism of bid appealed against the decision. win organised tenders for renovation and construction services. In case of 3 tenders, the Base had doubts as to 2 companies: DAR-BUD in Rąbi- no and BUD-MAX in Świdwin. The proceedings conducted by UOKiK showed that the contracting authority’s doubts were justified. In each of the 3 tenders, the contractors applied a mechanism of bid submission and retraction – they offered various prices, whereas the bid with the lowest price called for completion of the

9. Decision RWR-13/2017. 10. Decision DOK-3/2017. 11. Decision RWR-6/2017.

19 1.1 1.2 1.3 Calendar of events Competition-restricting Contractual advantage practices

official requirements. If contractors’ bids were among the two best ones, Resolution of the Supreme Court (SN) the bid with the lowest price was not completed in terms of official require- The issue of sewage and water supply connecting units has been debatable for ments, and once that contractor was many years. The definitions specified in the Act on Collective Water Supply and removed from the tender, the contract Collective Sewerage Services. Up to now, UOKiK maintained its position that the was awarded to another collusion par- connecting units do not comprise any pipes outside the border of the recipient’s ticipant that offered the higher price. property. A similar position with regard to a sewage connecting unit was expressed The traders’ position was negatively by the Supreme Court in 2017.16 This meant that a person applying for a connecting affected by the fact that in case of unit should conduct at their own cost works related to the construction, connection, tenders in which the arrangement and maintenance of the section only within the boundaries of their own property. of the bids did not guarantee that the Many sewage companies expressed a different view on this matter. Therefore, they contract would be awarded to one of demanded that recipients also finance works outside their houses and the network, the collusion participants, there were e.g. earthworks through a road, construction of pipes and their connection to the no problems with the official require- network. UOKiK considered these practices an abuse of a dominant position. Until ments. In addition, the traders knew 2014, a number of courts essentially maintained the position of the Office, but in 2017 each other as they cooperated with the Supreme Court adopted a different stance. According to the resolution issued themselves on more than one occa- by the SN,17 a sewage connecting unit is a pipe connecting the internal sewage in- sion as part of subcontracting activ- stallation ended with a manhole on the property of the recipient of sewage network ities. UOKiK found that the traders services, on the section from the manhole to the sewage network, and the sewage manipulated their bids on purpose in connecting unit – the whole length of the pipe connecting the sewage network with order to generate higher gains than in the internal sewage installation on the property of the recipient of services. This is a situation where they would be forced a different interpretation of the provisions than the one indicated in the previous to win fair and square. A fine of over resolution of the Supreme Court on this matter and UOKiK case law. PLN 20 thousand in total was imposed on the participants to the collusion.12 The amount of sanctions was reduced due to the fact that the practice was The entrepreneurs have been consult- contracted the works to the other par- only local and lasted several months. ing each other before placing a bid. ticipant of the tender. UOKiK found that The decision is final. Acting in collusion, the companies this practice was carried out in a cer- have agreed that when one of them was tain arrangement as it would have been Towing services awarded the given contract, the other less than likely for the prices offered by Information sent from the Province would serve as the subcontractor for 2 different traders to be equal down to Police Headquarters in Opole allowed such contract. As a result, they divided the last penny in case of each of the UOKiK to discover a tender collusion the market as each one of them contin- 21 services ordered. At the same time, concerning vehicle towing and park- ued to operate on its “own turf”, without their bids also contained the same er- ing. The notification pertained to two the need to compete against the other. rors and have been filed at exactly the entrepreneurs from the Opolskie An example may be the tender organ- same time. The tender collusion par- province: Auto Czok from Kępa and ised by the District Governor’s Office in ticipants received a fine of over PLN P.W. Warm from Niemodlin. The Of- 2013. The entrepreneurs placed bids 170 thousand.13 UOKiK has also or- fice found that the illicit practices which not only listed the same prices, dered the cessation of the prohibited covered not only tenders organised by but were also missing the same doc- practices, having determined that the the Headquarters, but also those or- uments. These deficiencies were later entrepreneurs in question were in fact ganised by the District Governor’s Of- remedied at exactly the same time and, still using similar methods when par- fice in Opole. The companies referred with only one exception, the bids still ticipating in public tender proceedings. to above have been applying the prac- offered the same prices for the ser- The issue has been appealed against tices in question at least from 2013. vices listed therein. The winner sub- with SOKiK.

20 1.4 1.5 1.6 Control of concentrations Court judgements State aid

tribution, and sale of heat to final recipients located in the municipality of Wadowice. UOKiK charged the company with an abuse of a dominant position by charging fees for extending the ordered heat power based on an incorrect legal basis. The pattern in use only indicated an incorrect desig- nation by the recipient of the ordered heat power and not its extension, as was wrongly interpreted by the company. Moreover, the recipients were suggested to sign annexes that in- Overview of activities – abuse of UOKiK carried out similar proceedings creased the ordered heat power in a dominant position against Regional Water Supply and exchange for the company refraining Sewerage Company in Brzesko. The from charging any additional fees in Water and sanitation market issue concerned abuse of a dominant the event of extension of the ordered In 2017, UOKiK found that Juchnowiec position on the local market for water power. The Office found that this con- Kościelny municipality abused its supply and sewerage infrastructure duct constitutes an illicit attempt to dominant position on the local col- management in several municipalities, exert pressure on service recipients lective water supply and sewage dis- and specifically the terms and condi- that increased their financial oblig- posal market. The matter pertained tions of agreements concluded with ations. In a decision made in 2017, to agreements concluded with private persons applying for connection to the the company committed itself to re- investors who would build water and network. The applicants were obliged frain from applying the incorrect fee sanitation equipment (e.g. hydrants, to build the missing section at their own charging method and to introduce water meters) using their own finan- cost and later transfer the ownership to appropriate clauses in the agreement cial means, and subsequently connect the company free of charge. This meant templates used by the company. At the them to the network administered by in practice transferring the network same time, the current trading part- the municipality. The municipality con- construction costs to the counterpar- ners were offered to replace the chal- cluded agreements for a paid takeover ties that are imposed under a statute lenged fee charging methods provided of such equipment. UOKiK had reser- on water supply and sewage enter- for in the contracts with new ones vations as to the provisions referring to prises. What is more, the enterprise that would be correct.18 Moreover, the abnormally low fees for the takeover used ready-made, unilaterally drafted company returned all additional fees of equipment, inadequate to the con- agreement templates which could not to its customers that were charged for struction costs borne by the investors. be negotiated by potential customers. extending the ordered heat power. The The agreements were non-negotiable, The decision took into account the en- decision is final. so the price was fixed unilaterally, with trepreneur’s commitment to cease 12. Decision RGD-5/2017. loss on the part of investors. Thanks to the practices in question and return 13. Decision RKT-4/2017. its monopolistic position, the munici- in whole the costs borne by the recipi- 14. Decision RLU-4/2017. 15. Decision RKR-7/2017. pality was able to derive unreasonable ents to construct the water supply and/ 16. File reference number III CZP 79/07. benefits to the disadvantage of another or sewage networks. In view of these 17. File reference number III SZP 2/16. 18. Decision RKR-5/2017. party to the contract. The Office ordered facts, UOKiK withheld from imposing the cessation of the troublesome terms a fine.15 The decision is final. and conditions of the agreements in question and imposed a fine of over Energy industry PLN 22 thousand.14 The municipality Termowad is an energy enterprise appealed against the decision. dealing with the transmission, dis-

21 1.1 1.2 1.3 Calendar of events Competition-restricting Contractual advantage practices

1.3 Contractual advantage

A contractual advantage pertains to over realised in the year before the the supplier's relationship with the year in which the fine is imposed. UOKiK activities in numbers – 2017 buyer in trade in agricultural and food products. It occurs when there is Overview of activities a considerable disproportion between the two in terms of economic potential In the second half of 2017, UOKiK and, at the same time, the weaker party carried out its first explanatory pro- 10 4 has insufficient opportunities to sell or ceedings and controls concerning investigations controls in the course of explan- buy agricultural or food products from a contractual advantage and applied atory proceedings other traders. The new act on counter- soft calls traders. The Office exam- acting this phenomenon has entered ined, inter alia, a significant increase into force on 12 July 2017.19 UOKiK is in the price of butter. The explanato- now vested with new powers related to ry proceedings concerned the opera- proceedings aimed at removing unfair tions of the largest store chains such 19 13 trade practices in this regard.20 as: Lidl Polska, Jeronimo Martins, notifications from soft calls to undertakings entrepreneurs Tesco Polska, Auchan Polska, Car- UOKiK also receives notifications refour Polska. UOKiK also analysed from entrepreneurs who suspect they the method of fixing milk prices in are the object of a contractual advan- commercial relations between 15 pro- tage. The Office may only intervene cessing entities and their suppliers. It The legislation changes to protect public interest. Moreover, was also verified whether sugar man- were accompanied by an intervention is possible only where ufacturers are resorting to practices the total value of the turnover between involving an unfair use of contractual information activities the supplier and the recipient exceed- advantage against suppliers of sugar conducted by UOKiK, ed the amount of PLN 50 thousand beets. Moreover, UOKiK carried out including meetings with during any of the 2 years preceding explanatory proceedings on the situa- the year in which the proceedings are tion on the industrial apple purchase entrepreneurs. The Office initiated and where the turnover of market in connection with a sudden launched a website the supplier or of the recipient which decline in acquisition prices in San- offering comprehensive resorts to the practices in question domierskie district. exceeded PLN 100 million during the information in this regard – year before the year in which the pro- www.przewagakontraktowa. ceedings are initiated. UOKiK is able to 19. The Act of 15 Decem- ber 2016 on Counter- uokik.gov.pl. order the discontinuation of the illicit acting the Unfair Use of practice, as well as to accept a com- Contractual Advantage in Trade in Agricultural and For more information mitment from the entrepreneur to re- Food Products (Journal of move the illicit practices or to remedy Laws of 2017, item 67). on this issue, see part 3. 20. The cases concerning their consequences. The Office also a contractual advantage has the power to impose on a trader are considered by the Branch Office of UOKiK in a fine of no more than 3% of its turn- Bydgoszcz.

22 1.4 1.5 1.6 Control of concentrations Court judgements State aid

1.4 UOKiK activities in numbers – 2017 Control of concentrations New concentration 228 control proceedings

Issued decisions

concentration approval 205

UOKiK controls the largest transac- The analysis of applications in con- conditional approval 1 tions that have or may have an impact on centration cases follows a two-step competition in the Polish market. The procedure, where simple cases are fine for failure to report 3 concentration purpose of these activities is to elim- considered within one month and for PLN 914,6 inate the risk of emergence of a new more complex cases this time limit fine for failure to provide thousand 1 entity with a market power threatening is extended by four months. In 2017, information nearly 97% of decisions were issued or eliminating competition. Other data at the first stage. The Office express- An intention to concentrate must be es concentration approvals in the ma- discontinuance of proceedings 2 reported if the total global turnover jority of cases. In 2017, only in a dozen return of the notification of of entrepreneurs participating in the or so cases the applications were ei- the intended concentration to 13 concentration in the financial year ther returned to entrepreneurs (due the applicant preceding the reporting year exceeds to formal deficiencies, among others) proceedings moved to 11 the equivalent of EUR 1 billion or if the or withdrawn (due to UOKiK’s reserva- the 2nd stage total Polish market turnover of entre- tions, among others). The Office also average time of proceedings 33 days* preneurs participating in the concen- carries out explanatory proceedings conducted in the 1st stage tration in the financial year preceding concerning the level of concentration average proceedings period the reporting year exceeds the equiv- in the economy and determination of 196 days** (2nd stage) alent of EUR 50 million. the obligation to report concentration. cases are given an opinion in terms of the impact of concen- After the proceedings, UOKiK may: Failure to provide the Office with infor- tration on the Polish market in 346 • consent to the concentration – if, as mation in the course of a proceeding connection with proceedings a result, competition on the market is in a concentration case, or effecting before the EC not significantly impaired, in particu- a concentration without the consent new explanatory 7 lar by the emergence or strengthening of the Office is punishable by fines. In proceedings*** of a dominant position on the market; 2017, the total fees imposed amounted • consent to the concentration con- to over PLN 914 thousand. Concentration approvals in the years 2015-2017 ditionally – if, after the fulfilment of 2015 2016 2017 the conditions, the main objective is Apart from examining cases pertain- achieved; ing to the Polish market, UOKiK also concentration 218 194 205 • give extraordinary consent – if the issues opinions on proceedings con- approvals transaction, despite its anti-compet- ducted by the European Commission conditional 1 2 1 itive effect, contributes to the eco- and concerning the impact of concen- approvals nomic development or technical pro- trations on the Polish market. gress or has a positive impact on the * The actual case settle- to exclusion under Art. ment period, taking into 96a sec. 8 of the ACCP. national economy; account the dates subject *** It pertains to the level • prohibit the transaction – if it results to exclusion under Art. 96 of concentration in the sec. 2 of the ACCP. economy and determina- in a significant restriction of compe- ** The actual case settle- tion of the obligation to tition on the market, in particular by ment period, taking into report concentration. account the dates subject the emergence or strengthening of a dominant position on the market. 23 1.1 1.2 1.3 Calendar of events Competition-restricting Contractual advantage practices

Overview of activities

EXAMPLES the possible risk that PZU may restrict access a nationwide scale. The significant information of 1st step proceedings to its products to banks offering bankassurance on the shares of the undertakings involved in (i.e. the sale of insurance services by banks). the concentration scheme and their competi- Concentration on the mining market However, the analysis performed by UOKiK ulti- tors were based solely on the estimates made In 2017, UOKiK gave its consent to the takeover mately proved that no such danger exists. This is by the applicant. As a result, UOKiK carried out by Polska Grupa Górnicza (the Polish Mining because insurance services are usually offered a market research to obtain credible data neces- Group) of 4 mines21 owned by Katowicki Holding as an addition to banking services. When select- sary to assess the concentration. The analysis Węglowy (the Katowice Coal Mining Holding) as ing the bank, the customers mostly focus on the showed that the shares of Empik and Platon on well as Śląskie Centrum Usług Wspólnych (the main products (loans, deposits, etc.) and not on the markets on which the transaction would Silesian Centre for Joint Services). During the the accompanying insurance policies. have an impact were not considered to be large proceedings conducted by UOKiK, it was found enough to pose a threat to their competitors. that no restriction of competition will result from Concentration – retail space After the concentration scheme is completed, the contemplated transaction. PGG engages pri- UOKiK gave its consent to acquisition of the fol- Empik will still have to compete against other marily in the excavation and sale of bituminous lowing shopping malls by Echo Polska Proper- undertakings. For the above reasons, the Office coal (including both power coal and coke). The ties (EPP): Galeria Twierdza in Kłodzko and Zam- approved the concentration. aim of the concentration is, inter alia, to acquire ość, and Galeria Wzorcownia in Włocławek.23 At additional manufacturing facilities for the pur- the beginning, the application also involved the Concentration on the electricity market poses of expanding PGG’s activities in the mining acquisition of “Tęcza” Shopping Mall in Kalisz, UOKiK gave a conditional approval to the take- sector. Due to the absence of significant trade whereas EPP already had one shopping mall at its over of EDF Polska by PGE.25 The transaction barriers within the territory of the European disposal in this city. According to the undertaking, participants deal with the production, sale, and Union as well as the high export and import vol- the acquisition of another entity would not give distribution of electricity. EDF Polska produc- ume, the bituminous coal trading markets oper- rise to the limitation of the competition. UOKiK es the majority of energy in the Rybnik Power ate at least on a European – if not greater – scale. found, however, that the case requires a market Plant. Market testing has proved necessary to The aggregate share of PGG and the coal mining research. The Office prolonged the proceedings reach the relevant conclusions. The market test- facilities acquired by the company is not substan- in order to verify the data included in the applica- ing process applied to all major electric power tial enough to pose a threat to competition. tion in terms of the definitions of relevant markets sector players. UOKiK has also requested the and assessment of the impact of concentration. Energy Regulatory Office and the Polish Ener- Concentration in the banking sector In the meantime, EPP withdrawn its application gy Exchange (Towarowa Giełda Energii S.A.) to UOKiK gave its consent to Powszechny Zakład and submitted another one, this time without the present their opinion on the matter. A detailed Ubezpieczeń (PZU) taking control over Bank acquisition of the shopping mall in Kalisz. analysis showed that the transaction could Polska Kasa Opieki (Pekao S.A.), Pioneer Pekao affect the competition. In view of these facts, Investment Management, and Xelion Investment EXAMPLES UOKiK raised objections to the entrepreneur. House.22 PZU mainly deals with the sale of prop- of 2nd step proceedings The Office stated that PGE may gain a domi- erty and personal insurance. In addition, it also nant position on the electricity generation and leads a capital group consisting of a few dozen Takeover on the book market distribution market. This in turn may give rise entities, including Alior Bank. The proceedings UOKiK gave its consent to acquisition of Platon to a decline in the turnover of the Polish En- proved that the total share of the entrepreneurs by Empik.24 Empik deals with the sale of goods ergy Exchange (Towarowa Giełda Energii) and involved in the concentration scheme in the sec- such as books, newspapers and magazines, have an adverse impact on the sale market. In tors related to broadly understood banking ser- music, films, multimedia, electronic equipment response, the company offered a solution that vices would not exceed 20%, which means that and tickets for cultural events. Platon, on the lead to a conditional approval. In line with the Alior Bank and Pekao will still have to compete other hand, is a book wholesaler and distribu- condition imposed on PGE, in the years 2018- against other banks. The Office also examined tor. Both undertakings pursue their business on 2021 the company will have to sell on the ex-

24 1.4 1.5 1.6 Control of concentrations Court judgements State aid

Examples of UOKiK’s decisions in concentration control cases in 2017

In 2017, as in the previous year, decisions in concentration cases most often concerned the real estate market (including property development). change the entire energy produced by the Rybnik Power Plant. This quantity may decrease only Industry Number Examples of decisions in the event of increase of the statutory obliga- of cases tion of energy disposal by the entire PGE Group. The realisation of the entrepreneur’s offer will real estate 24 DKK-107/2017 con- DKK-183/2017 DKK-203/2017 smooth out any negative consequences of the (including prop- sent to take control consent to establish consent to establish erty development of mLocum S.A. in a joint venture: PDC a joint venture: PDC transaction on the competition. market, property Łódź by Archicom Industrial Center 81 Industrial Center 79 rental) S.A. in Wrocław Sp. z o. o., seated Sp. z o. o., seated Fine for failure to report concentration in Warsaw, by PG in Warsaw, by PG Dutch Holding I B.V., Dutch Holding I B.V., Control of concentration is intended to prevent the Netherlands, and the Netherlands, and the formation of undertakings which could have Marvipol Logistics Kajima Properties an adverse impact on competition on the given S.A. in Warsaw (Europe) Limited, the UK market. The provisions of applicable laws stip- ulate severe financial penalties for failure to submit a notification of such transaction. Such food sector 19 DKK-34/2017 con- DKK-63/2017 con- DKK-133/2017 con- cases, however, are extremely rare. sent to establish sent to take control sent to take control a joint venture: of PINI Polska of Moorgut Kartzfehn In 2017, UOKiK imposed a fine on Bać-Pol as its Polven Sp. z o.o., Sp. z o.o. in Kutno, von Kameke GmbH seated in Warsaw, Royal Chicken & Co. KG (Germany) subsidiary carried out a concentration without by Cornum Capital Sp. z o.o. in Kutno, and Kartzfehn von the necessary consent of the Office.26 In 2012, SICAV-FIS in Luxem- and Hamburger Pini Kameke Beteili- the company known as Sezam-Śrem took over bourg and Blue Sea Sp. z o.o. in Kutno gungsgesellschaft Investments S.à.r.l. by Smithfield Foods, mbH (Germany) by the control of a part of the property of another in Luxembourg Inc., USA EW Group GmbH company called Klementynka, with registered (Germany) office in Wrocław. Both undertakings were gro- cery wholesalers. Since in 2015 Sezam-Śrem became a part of Bać-Pol, it was the latter investment funds 11 DKK-17/2017 DKK-61/2017 con- DKK-168/2017 con- company against which the proceedings were consent to take sent to establish sent to take control initiated. It used to be a subsidiary. Despite the control of Penton To- a joint venture: of KBC Towarzystwo warzystwo Funduszy Future Tech Closed- Funduszy Inwestycyj- absence of a written takeover contract, UOKiK Inwestycyjnych S.A. -End Investment nych S.A. in Warsaw was able to determine that Sezam-Śrem ac- seated in Warsaw by Fund, seated in War- by PKO BP Finat quired key assets from Klementynka as well Jan Motz residing in saw, by mBank S.A. Sp. z o.o. in Warsaw Wólka Dworska seated in Warsaw, as all the relevant business secrets. In the end, Jarosław Jerzy M. UOKiK imposed a financial penalty of PLN 527 residing in Warsaw, thousand on Bać-Pol for failure to report the in- and Wojciech C. residing in Warsaw tended concentration. An additional factor which was taken into account in the process of determining the penalty amount was the fact that the undertaking consciously violated the provisions of the Act on Competition and Consumer Protec- 21. Decision DKK-49/2017. 24. Decision DKK-129/2017. tion. The only attenuating circumstance was that 22. Decision DKK-56/2017. 25. Decision DKK-156/2017. it has only done so for the first time. 23. Decision DKK-74/2017. 26. Decision DKK-86/2017.

25 1.1 1.2 1.3 Calendar of events Competition-restricting Contractual advantage practices

1.5 Court judgements

Court judgements in cases * Information on all appeals Judicial decisions in competition protection against UOKiK’s decisions are regarding practices restricting available from the decision data- cases (2015-2017)* competition and concentration base at: http://www.uokik.gov.pl/ decyzje_prezesa_uokik3.php. control

SOKiK SA in Warsaw SN Traders may file appeals against UOKiK’s decisions and complaints 2015 2016 2017 2015 2016 2017 2015 2016 2017 against the Office’s resolutions to the 51 Court of Competition and Consumer Judgements 41 Protection (SOKiK) in Warsaw. The in competition 33 cases in 2013- 28 30 Court’s judgements may be appealed -2016 in total, 13 against to the Court of Appeal in War- of which: 8 3 2 saw (SA in Warsaw). At the next stage, it is possible to file a cassation complaint with the Supreme Court (SN). 25 15 vertical 8 Overview of judgements 3 7 4 1 1 2 agreements

SOKiK – the judgement of 7 February 2017 on the appeal 27 15 16 of Sport & Freizeit 13 horizontal 5 6 4 0 0 1 In 2013, UOKiK held that the agree- agreements ment on resale prices of skiing equipment and accessories concluded by Sport & Freizeit and Intersport Polska 17 19 abuse of a 11 12 10 constituted a competition-restricting dominant 5 1 2 1 practice. Whereas Intersport Polska position took advantage of the leniency programme and managed to avoid the imposition of a financial penalty, Sport & Freizeit had to pay a fine of over PLN concentration 1 1 0 1 2 0 0 0 0 122 thousand and appealed with the control Court of Competition and Consumer Protection (SOKiK). The court shared amend the contracts with its custom- provisions having a similar effect to the the UOKiK’s stance and sustained the ers so that they no longer contain any previous ones. As a result, a financial amount of financial penalty. restrictions concerning the reduction penalty of over PLN 10 million was im- in the volume of gas ordered, which posed on PGNiG in 2015. The under- SOKiK – the judgement of the company was obliged to do. The taking appealed against the decision, 21 March 2017 on PGNiG28 company undertook to exclude the im- SOKiK sustained the decision of the PGNiG has failed to comply with the pugned provisions from the contracts; Office in full. The Court emphasised decision of UOKiK, and specifically to however, it also proposed replacement that the penalty was charged appropri-

26 1.4 1.5 1.6 Control of concentrations Court judgements State aid

ately and considered each day of delay infrastructure, these family-related 1.6 in performance of the decision. undertakings would repeatedly agree State aid between themselves the conditions of Court of Appeal – the judgement of the bids placed, ultimately resulting 5 January 2017 on paints29 in the contract being awarded to the The case referred to UOKiK’s decision company which offered a higher price. of 2010 concerning a collusion between The Office imposed a fine of over PLN The EU law only permits state aid by Akzo Nobel Decorative Paints with 129 thousand on Zebra Max and Zebra way of exception, so as not to distort Leroy Merlin, Castorama, Praktiker, 2. In the years 2013-2015, the case was free competition within the EU mar- and OBI. The Office found that the com- reviewed twice by SOKiK that ultimately ket. State aid projects or changes panies engaged in collusion which in- sustained the UOKiK decision. In 2017, to the terms and conditions of use volved the fixing of resale prices for the Court of Appeal overruled the ap- of such aid must be reported to the paints and coatings manufactured by peals made by both traders while sus- European Commission (EC). An ex- Akzo Nobel. Both SOKiK and the Court taining both the statement of reasons ception is aid granted under so called of Appeal held that the activities of the and the amount of penalty. block exemptions32 and de minimis entrepreneurs in question amounted aid.33 State aid is not only a transfer to a competition-restricting agree- Court of Appeal – the judgement of funds, but also of any other form of ment, but they have reduced the fines of 4 October 2017 on the appeal of state resources. imposed by the Office substantially, Inco Group31 from nearly PLN 52 million to PLN The appeal was made against the The EC decides whether state aid 4.2 million. The Court of Appeal held decision of UOKiK of 2011 concern- granted to businesses in the EU is that, in determining the amounts of the ing the conclusion by Inco Group of compatible with the internal market. penalties imposed, UOKiK has failed agreements with the distributors of In contrast, UOKiK’s main task is to to take sufficient account of the fact household chemicals and garden fer- perform the initial assessment of that Akzo Nobel was a relatively mi- tilisers. Both cases involved the fixing cases of individual aid and aid pro- nor supplier whose importance for its of minimum wholesale prices for those grammes in this regard.34 Although distributors was limited at best, which products. The garden fertilisers collu- the Office’s position is not binding, it meant that the impugned practice sion also involved a market allocation is very often taken into account in de- could not have a significant impact on scheme under which individual dis- cisions of the European Commission. the market in question. Moreover, the tributors were not allowed to sell fer- In the process of notification of state Court of Appeal overruled the decision tilisers to nationwide retail networks aid, UOKiK notifies the EC of an inten- insofar as it pertained to the partici- without a written consent of the Inco tion to grant aid. pation in the arrangement with Leroy Group. For the use of these practices, Merlin and held that at the time of ini- the Office imposed on the company tiation of the anti-trust proceedings, a fine of over PLN 2 million. The Group the claims pertaining to the practic- appealed against the decision, but it es which the company engaged in had was sustained by both SOKiK and the 32. The European requirement does not become time-barred. Court of Appeal. The Supreme Court Commission may issue apply to aid which does shared the view of the Office and over- regulations under which not exceed EUR 200 certain aid categories are thousand gross during Court of Appeal – the judgement ruled the cassation appeal. a priori considered as three calendar years (or of 25 October 2017 the appeal compatible with the com- EUR 100 thousand for the 27. File reference mon market, and as such sector of road transport 30 of Zebra Max number XVII AmA 115/14. do not require prior noti- of goods). In 2017, UOKiK held that companies 28. File reference fication to or a consent 34. UOKiK is not compe- number XVII Ama 4/16. from the Commission. tent to decide on state aid from Bytom – Zebra Max and Zebra 2 29. File reference More information availa- in agriculture and fishing – were involved in a tender collusion. number VI ACa 1057/15. ble at http://www.uokik. industry (in line with the 30. File reference gov.pl/wylaczenia_gru- Act of 30 April 2004 on When participating in public tenders for number VII Aca 872/17. powe_i_pomoc_de_mini- Proceedings in Public the construction or maintenance of road 31. File reference number mis2.php. Aid Cases, i.e. Journal of III SK 47/16. 33. The notification Laws of 2018, item 362).

27 1.1 1.2 1.3 Calendar of events Competition-restricting Contractual advantage practices

The Office also monitors state aid in UOKiK activities in numbers – 2017 Poland on the basis of reports submitted by aiding institutions. Reports Opinions on state aid and government projects Number are submitted via SHRIMP data stor- age system. In 2017, the first stage Number of applications for interpretation received and analysed 451 of system modernisation has been completed and a detailed description Number of draft government documents analysed for recognition 704 of the subject of procurement was of support as state aid prepared in the tender documentation. The project is financed from the Notification of de minimis programmes 1033 Cohesion Fund TA OP 2014-2020 as part of arrangement with the Minister Notification proceedings before the EC Number of Development and Finance. projects notified to the EC via the Office, of which: 15 – individual aid projects (including restructuring) 6 Overview of activities – aid scheme projects 9

projects accepted by the EC 11

Information on state aid withdrawn projects 4

State aid reports projects analysed by the EC under preliminary investigation 41 UOKiK prepares reports and analyses on state aid, including: projects for which formal investigation was carried out* 2 • an annual report on aid granted to entrepreneurs • an annual report on de minimis aid projects submitted to the EC via UOKiK under block exemptions, including: 49 – aid scheme projects 8 • a periodical report on automotive companies – individual aid projects 41 as part of special economic zone

* The statistics also include applications submitted in the previous years, Electronic State Aid Information System which the European Commission assessed in 2016. (SUDOP) The system contains basic information on granted aid. The application is based on the data Regaining state aid implemented took a stance that the aid in question provided by aid grantors in the form of reports for Autostrada Wielkopolska S.A. does not comply with the internal submitted to UOKiK via SHRIMP. market. The EC’s decision sustained In 2017, the EC made a decision or- that stance. SHRIMP: System for Aid Schedule, dering Autostrada Wielkopolska S.A. Registration, and Monitoring to return the compensation that has UOKiK closely cooperated with the It allows to provide uniform reports on granted been wrongly paid to the company in Ministry of Infrastructure, the General state aid and information on failure to provide question. Consequently, the state of Prosecutor’s Office of the Republic of such aid Poland should obtain from the com- Poland, and the General Directorate pany a total of PLN 894 million, infor National Roads and Motorways See creased by due interest. The decision in connection with the case in order SUDOP Database was made as a result of proceedings to recover the compensation and ar- Reports and analyses instigated at request of Polish au- ranged the manner and schedule of its thorities. Within the course of the recovery. proceedings, the Polish authorities

28 1.4 1.5 1.6 Control of concentrations Court judgements State aid

EXAMPLES Poland should obtain of projects evaluated or notified in 2017 from the company Auto- strada Wielkopolska S. A. Draft regional aid programme for SMEs Draft Regulation of the Minister of Culture and dealing with the shipbuilding sector National Heritage on granting aid to culture a total of and the protection of cultural heritage as part Draft “Support programme for implementa- of the Infrastructure and Environment Ope- tion of intermodal transport projects within rational Programme for the years 2014-2020 the framework of the Infrastructure and Environment Operational Programme 2014- Draft Regulation of the Minister of Develop- -2020” ment and Finance amending the Regulation on providing investment support for sport and multi-function recreational infrastructures as part of regional operational programmes for PLN mn, increased by the years 2014-2020 due interest

Research and development and suggested solutions that ensured be withdrawn for economic reasons. compliance with state aid regulations. The Act is also supposed to ensure In 2017, UOKiK actively cooperat- One of the major changes provided for the establishment of new sources in ed with the Ministry of Science and in the new regulations involves the in- this respect in order to ensure that Higher Education and the Ministry of troduction of an additional catalogue the power level corresponds to anti- Development, along with their subor- of eligible costs and the possibility cipated demand. The pre-notification dinate units: the National Centre for of higher tax deduction for entre- procedure consisted in a substan- Research and Development, the Infor- preneurs enjoying the status of a re- tial exchange of information with the mation Processing Institute – the Na- search and development centre. An European Commission. Within the tional Research Institute. The purpose R&D relief in this regard constitutes course of the procedure, the state of the cooperation was to come up state aid which can only be granted in of Poland arranged with the Com- with solutions for the most frequent line with the General Block Exemption mission and introduced a number of problems associated with R&D state Regulation, i.e. without the need to no- changes in the draft. Ultimately, they aid, and in particular aid granted as tify the Commission. allowed to obtain a decision approving part of projects co-financed by the Eu- the programme that was made by the ropean Union. As part of its activities, Polish power market Commission in February 2018, along UOKiK took part in a number of R&D with 5 other decisions referring to the state aid trainings for the representa- 2017 was marked initially by pre-no- power market support programmes tives of the institutions of higher edu- tification, and subsequently notific- in Belgium, France, Germany, Greece, cation, scientific centres, and regions ation of a strategic (from the view- and Italy. that were organised by the Ministry of point of the Polish power sector) the Development. Power Market Act. Power market is a mechanism that assumes awarding UOKiK was actively involved in the electricity producers for their readi- legislation procedure for new legal ness to supply power for the National solutions in R&D relief. In this regard, Power System (KSE). The purpose the Office closely cooperated with of the mechanism is to create an in- the Ministry of Development and the centive to maintain generating units Ministry of Finance, made comments in the system that are scheduled to

29 2.1 2.2 2.3 2.4 2.5 Calendar of events Consumers' collective Supervision over Product safety and Laboratories interests and standard The Trade Inspection market surveillance contractual clauses Authority

30 2.6 2.7 2.8 2.9 Fuel quality control Out-of-court consumer Court judgements Cooperation with consumer system dispute resolution organisations and consumer ombudsmen

CONSUMER PROTECTION

The tasks of the Office revolves around the protection of interests of consumers as a collective entity as well as to remove any irregularities and violations of the applicable provisions. Such tasks are horizontal in nature, which is why interventions and inspections are conducted across various market sectors. As part of the consumer protection network, the Office cooperates with sector regulators, judicial authorities, enforcement agencies, non-governmental organisations, and consumer ombudsmen. UOKiK monitors the out-of-court dispute resolution system involving entrepreneurs and provides counselling for consumers.

31 2.1 2.2 2.3 2.4 2.5 Calendar of events Consumers' collective Supervision over Product safety and Laboratories interests and standard The Trade Inspection market surveillance contractual clauses Authority

JANUARY FEBRUARY MARCH

10.01 6.02 7.03 Amicable dispute resolution Initiation of a series of clause Meeting with the inspectors of – new regulations enter into force proceedings against banks the Trade Inspection Authority The Office developed the Act on Out- regarding an unclear specification The purpose of the trainings was to -of-Court Consumer Dispute Reso- of currency exchange rates standardise the practice in terms of lution35 that implements the EU law UOKiK charged BZ WBK with the pos- non-food products. in this respect. As part of the new sible use of abusive clauses in stand- system, the Trade Inspection Author- ard agreements and in annexes to 10.03 ity, which reports to the President mortgage loan and credit contracts Conference on the occasion of UOKiK, is one of the entities now denominated in foreign currencies. of World Consumer Rights Day empowered to review cases from the The case brought about a series of The conference’s main theme was industries which are not governed by proceedings in this regard which con- “Consumer Protection in the Age of specialised institutions. cerned in total 9 banks. a Rising Silver Economy”. The meeting was organised by UOKiK, the 11.01 16.02 Senate Subcommittee for Consumer Reasoned opinion in a case Initiation of UOKiK laboratory Protection, and the Cardinal Stefan of durable medium assessment as part of accreditation Wyszyński University in Warsaw. The UOKiK shared consumer’s view in procedure conference was held under the Honor- a dispute with Creamfinance Poland The assessment was carried out by the ary Patronage of the President of the as to the manner of release and stor- Polish Centre for Accreditation (PCA). Council of Ministers of the Republic age of information significant for the In the months to follow, all labor- of Poland. lending company. In the opinion of atories of the Office were examined. the Office, neither the website nor Under the accreditation procedure, it user account provided by the lender was confirmed that they are compe- met the criteria of a durable medium. tent for research. 35. The Act of 23 Septem- 36. The Act of 23 March ber 2016 on Out-of-Court 2017 on Mortgage Loans Consumer Dispute Reso- and Supervision of Mort- lution (Journal of Laws of gage Loan Brokers and 2016, item 1823). Agents (Journal of Laws of 2017, item 819).

32 2.6 2.7 2.8 2.9 Fuel quality control Out-of-court consumer Court judgements Cooperation with consumer system dispute resolution organisations and consumer ombudsmen

APRIL MAY

21.03 5.04 10.05 Initiation of EC audit Finale of the 8th Wielkopolska Durable media – the first decision on official food control Consumer Knowledge Olympiad UOKiK found that the internal e-bank- The audit concerned all Polish insti- The event was held under the patron- ing system used by Credit Agricole tutions in charge of controlling food. age of the President of UOKiK and Bank Polska did not meet the stand- The EC confirmed that UOKiK and the Marshal of the Wielkopolskie Province. ards of a durable medium (RBG- Trade Inspection Authority ensure The competition promotes knowledge 2/2017). This is the first decision of compliance with the EU food law. on consumer law among youths and is the Office in this regard. The entre- co-organised by the Branch Office of preneur also made illegal and uni- UOKiK in Poznań. In 2017, 7 consumer lateral changes in contractual pro- 27.03 protection events were held under the visions. The Bank committed itself Initiation of explanatory patronage of the President of UOKiK. to carry out various forms of public proceedings – amusement parks compensation and return individually UOKiK instigated explanatory pro- 21.04 settled fees and commissions which ceedings with regard to contract tem- New law in the scope of mortgage changed during the term of bank con- plates used by amusement parks, kart loans and consumer loans tracts during the last several years. circuits, ropes courses, and paintball The change in legal regulations result- parks. Market monitoring involved ed from the entry into force of the Act 15-19.05 a control of templates used by 27 en- on Mortgage Loans and Supervision of Delegation from Malta trepreneurs. If there were any irreg- Mortgage Loan Brokers and Agents.36 A few days’ visit was conducted as ularities, UOKiK would request entre- This is the first comprehensive reg- part of the EU civil servant exchange preneurs to change their provisions. ulation in this area. It increases the programme. The representatives of transparency of offers and strengthens the market surveillance authority in the position of consumers in relations Malta received information about the with financial institutions. The Act also Polish surveillance system, including changes legal provisions concerning cooperation with customs agencies. how a consumer loan can be adver- Later on, UOKiK also hosted the rep- tised. UOKiK was actively involved in resentatives of the market surveil- the legislation procedure. lance authority from Bulgaria (June) and Germany (December). 33 2.1 2.2 2.3 2.4 2.5 Calendar of events Consumers' collective Supervision over Product safety and Laboratories interests and standard The Trade Inspection market surveillance contractual clauses Authority

JUNE JULY AUGUST

5.06 21.07 11.08 Decision on contract templates: Public compensation in the Penalty for misleading telecommu- prohibited – the first decision telecommunications industry nications advertisements Kazimierz Wielki Univevrsity in Byd- UOKiK has concluded proceedings UOKiK imposed a fine of over PLN 16 mn goszcz (UKW) manages a general edu- against Neovision (DOIK-3/2017). on Orange Polska for advertisements cation school complex. The Office chal- The matter concerned, inter alia, the “Superpromotion of Neostrada” and lenged the provisions provided for in company’s failure to respect the con- “Geopromotion for Neostrada” (RBG- template contracts concluded with the sumer’s right to withdraw from the 4/2017). The company failed to inform students’ parents. This practice lead to contract in case of extension of con- in a due manner about any additional a one-sided specification of the amount tracts for TV platform services. The costs as part of its promotional pack- of tuition fees by the UKW. The Office company committed itself to provide ages. accepted the University’s commitment a public compensation and return the to change the practice (RBG-3/2017). wrongly charged fees. 18.08 Consumer warning 19.06 26.07 – pyramid scheme Initiation of the overview of the Opening of a new website UOKiK issued a warning against management system in UOKiK www.polubowne.uokik.gov.pl OneLife Network Limited in the laboratories A special website with information course of proceedings for an illegal, The UOKiK management carried out on using the out-of-court consumer pyramid-like promotional system as- an overview of the management sys- dispute resolution system has been sociated with “OneLife” and “OneA- tem in the laboratory in Poznań as part launched. cademy” projects as well as “OneCoin” of accreditation system and develop- cryptocurrency. ment plans. Similar overviews were conducted from June to November in other 7 units owned by the Office.

34 2.6 2.7 2.8 2.9 Fuel quality control Out-of-court consumer Court judgements Cooperation with consumer system dispute resolution organisations and consumer ombudsmen

SEPTEMBER OCTOBER

14.09 28.09 12.10 Establishment of cooperation Workshops for entrepreneurs – Top fine – misleading in the Baltic states region market control and surveillance advertisements UOKiK took part in a meeting of cus- The workshops were intended for UOKiK imposed a fine of over PLN 25 mn toms authorities and surveillance in- entrepreneurs from the clothing, on Aflofarm for its ads on dietary stitutions of the Baltic states in Riga. furniture, entertainment, home ap- supplements “RenoPuren Zatoki Hot” The event concerned regular cooper- pliances, and electronics industries and “RenoPuren Zatoki Junior” (DOIK- ation between the countries located in and concerned market control and 5/2017). The food products were pre- this region, the purpose of which is to surveillance provisions. The meeting sented as though they featured heal- protect the EU market against prod- participants also discussed irregular- ing properties. This is the highest fine ucts which do not meet the applica- ities concerning toys and electronic imposed in 2017 for practices that vi- ble standards and, as a result, pose equipment. olate collective consumer interests. a threat to their users. 29.09 16.10 18.09 Fine for misselling for a credit Initiation of activities under Initiation of the campaign intermediary Joint Action 2016 “Make friends with arbitration!” UOKiK imposed a fine of over PLN Joint Action 2016 is a European pro- From September to October, UOKiK 6 mn on Europejska Grupa Finanso- ject concerning market surveillance conducted an online campaign which wa Council S.A. (RWR-5/2017). The in terms of safety of electronic toys, encouraged consumers to use the company encouraged consumers to hair treatment devices, and percus- out-of-court entrepreneur dispute enter into consumer loan contracts sion drills. UOKiK became a leader resolution system. whose terms and conditions did not of an action concerning the safety of correspond to the needs expressed by hair treatment devices. The project them and repayment capacity. With- will end in October 2019. in the course of proceedings, UOKiK issued a warning against the harmful practices used by the company.

35 2.1 2.2 2.3 2.4 2.5 Calendar of events Consumers' collective Supervision over Product safety and Laboratories interests and standard The Trade Inspection market surveillance contractual clauses Authority

NOVEMBER DECEMBER

13.11 11.12 Training for entrepreneurs Meeting with the National Council and entrepreneurs. The forum is or- – RoHS directive for Consumer Ombudsmen ganised by the Ministry of Entrepren- The event was co-organised by the The purpose of the meeting was to dis- eurship and Technology. Polish Centre of Research and Cer- cuss the need for legislation changes tification. The purpose of the meeting in contracts concluded away from the 18.12 was to discuss the EU law regarding business premises. Publication on the UOKiK website of the limitation of certain hazardous an alert on alternative investments substances in electric and electronic 12.12 The publication on the UOKiK web- equipment (“RoHS”). This is the first Meeting of the Market Surveillance site of a message on dangers asso- one of scheduled trainings which Steering Committee ciated with so-called alternative in- promote rights and obligations in the As part of coordination of the nation- vestments, pyramid schemes, forex, scope of market surveillance. al market surveillance system, UOKiK broken down into entities subject to organises regular Steering Committee proceedings conducted by the Office. 28.11 meetings. They are participated by the Jubilee of the Silesian Standing representatives of institutions involved 29.12 Arbitration Court in market surveillance in Poland. Approval of the National Market UOKiK was involved in festivities on Surveillance Programme for 2018 the 25-year anniversary of an arbit- 13.12 The European Committee of the Coun- ration court at the Silesian Province National Cooperation Forum in cil of Ministers approved an annual Trade Inspector in Katowice. It was chemicals surveillance market surveillance programme. The one of the first institutions in Poland UOKiK took part in a meeting involving document was prepared by UOKiK in to deal with out-of-court resolution authorities which control substances cooperation with surveillance insti- of disputes between consumers and and chemical mixtures. The forum is tutions. It presents a synthetic list of entrepreneurs. used as a place for exchange of expe- priorities and tasks, broken down into rience in chemicals. It is participated specific industries. by the representatives of research in- stitutes, public administration bodies,

36 2.6 2.7 2.8 2.9 Fuel quality control Out-of-court consumer Court judgements Cooperation with consumer system dispute resolution organisations and consumer ombudsmen

2.2 Consumers' collective interests and standard contractual clauses

Practices that violate collective con- Initiated proceedings (in years 2015-2017) New proceedings sumer interests involve activities contrary to legal regulations or best on practices that violate collective practices that may potentially affect consumer interests an unlimited number of persons. on recognition of the clauses of They may especially take the form of template contracts as unlawful* unfair market practices, lack of reli- 195 19 106 able information, or sale of financial 98 explanatory decision enforcement control products not adjusted to the means 62 or needs of a consumer (misselling). It is also prohibited by law to ap- 10 13 ply prohibited standard consumer contract forms while entering into 13 62 2015 2016 2017 contracts with consumers. General on recognition of the on practices that terms and conditions, regulations, or In the years 2015-2017, the number of proce- clauses of template violate collective other types of forms cannot shape the edings concerning practices that violate col- contracts as unlawful consumer interests rights and obligations of consumers in lective consumer interests decreased. This was affected by entrepreneurs’ conduct. Once a way which violates best practices or the President of UOKiK intervenes in the form of grossly violates their interests. a soft call or conducts explanatory proceedings, entrepreneurs often adjust their practices to 4 With consumer protection in mind, the requirements resulting from legal regu- on imposition of a fine** UOKiK monitors entrepreneurs’ lations or best practices. As a result, it is not necessary to instigate proper proceedings on ** Proceedings concerning a fine to be imposed on activities and analyses warnings from a trader for failure to comply, or default in complying, a given case. the market, including consumer com- with a decision, for failure to provide the requested * In 2016, the Office was vested with new powers that information to the Office or for provision of false or plaints. Such information contributes allow it to recognise clauses in standard contracts as misleading information, for failure to cooperate in the to the identification and removal of il- prohibited. course of an inspection. licit practices. A basic form of Office’s intervention involves administrative detailed justification of charges to the fore courts and regarding consumer proceedings which may lead to a fi- trader (SUZ). protection. As in the previous period, nancial penalty being imposed on the the opinions expressed in 2017 mainly entrepreneur. Such sanctions do not, The proceedings against a specific concerned mortgage loan contracts however, eliminate the losses suffered trader are usually preceded by ex- denominated in CHF. A number of by consumers as a result of unfair planatory proceedings which aim at reasoned opinions concerned Unit- practices. As a result, UOKiK employs an initial identification of violation. -Linked Life Insurance Plan (ULIP) various forms of public compensa- UOKiK may also apply less severe contracts. The dominant nature of tion. Under certain circumstances, it forms of interventions through con- these cases results from the fact is possible to accept a commitment sumer protection calls to entrepre- that in previous years entrepreneurs from an entrepreneur to change their neurs (so-called soft calls). resorted to prohibited contract terms impugned conduct. Prior to issue of on a broad scale, which had severe the decision confirming the practice The Office also expresses views which consequences for consumers. or imposing a fine, the Office presents are significant in cases brought be-

37 2.1 2.2 2.3 2.4 2.5 Calendar of events Consumers' collective Supervision over Product safety and Laboratories interests and standard The Trade Inspection market surveillance contractual clauses Authority

Issued decisions – 2017 Other activities – 2017 66 78.8 PLN mn total fines 5726 2 545 on practices violating warnings from the performed new soft calls to accepted collective consumer market controls entrepreneurs 26 liabilities interests 9 36 detailed justifications detailed justifications of allegations PLN mn total fines 5.9 of allegations under under proceedings for violation of 6 proceedings for collective consumer interests and on recognition penalty imposition prohibited contractual clauses of the clauses of accepted liabilities template contracts 1 as prohibited 297 7 reasoned opinions consumer 10 on judicial cases warning issued on imposition of a fine

Overview of activities ternal e-banking systems which do Pyramid schemes and alternative not meet the criteria of a durable investments Information security – a durable medium. In decisions made against In 2017, UOKiK made an announcement medium in the financial sector Credit Agricole,38 the Euro Bank,39 of new threats to consumers related The term of “durable medium”37 can be the Bank for Environmental Protec- primarily to currencies, so-called alter- found in numerous provisions which tion (BOŚ),40 UOKiK found that the native investments, pyramid schemes, regulate the rights and obligations in internal e-banking systems were and forex phenomena. It also contained agreements to which consumers are entirely controlled by the entrepre- information on entrepreneurs who are parties. The issue has also been dis- neurs. The technology used by them subjected to proceedings by the Of- cussed as part of proceedings carried did not guarantee that the content of fice to verify whether their activities out by UOKiK in the financial sector. documents would not be changed uni- fall within a pyramid scheme41. Illegal laterally. Moreover, it does not grant mechanisms42 are often hidden under In the years 2015-2017, the Office access to information after the end the pretence of various type of invest- instigated proceedings against 18 of the contract. The Banks discontin- ments, e.g. in gold, diamonds, or various banks as it challenged the ways their ued the impugned practices and have currencies. Consumers often learn that customers were notified about sig- commenced efforts intended to mod- they have been deceived only after the nificant changes in the contracts, e.g. ify their systems so that they meet the system collapses. As a consequence, as regards fees and commissions. criteria of durable media. consumers often lodge complaints with Moreover, some of the banks only UOKiK in this regard. A short-term na- provided information using their in- ture of schemes as well as their illegal

38 2.6 2.7 2.8 2.9 Fuel quality control Out-of-court consumer Court judgements Cooperation with consumer system dispute resolution organisations and consumer ombudsmen

37. Durable medium Questra World Global S.L. in – a material or device Spain, Atlantic Global Asset Highest fines per decisions – 2017 PLN mn allowing consumers or Management on the Cape – violation of collective consumer interests total fines undertakings to store Verde Islands, Gold I Global information addressed to Online Limited seated in them. The key aspect of London, Goldsaver, Lyoness. 78.8 a durable medium is that 42. It is prohibited by law for it provides access to data entrepreneurs to establish, DOIK-5/2017: RBG-4/2017: which can be reproduced in carry out or promote an unaltered way – without pyramid schemes. Such creator’s intervention. From systems are not based on PLN 25.8 mn PLN 16.3 mn consumer’s perspective, actual investments, but on Aflofarm Farmacja Polska Sp. z o.o. Orange Polska S.A. the purpose of a durable subsequent enrolments and medium is to ensure that payments by new members the information is stored for that are not invested, for misleading advertising of dietary for misleading advertising a period necessary for the but merely intended for supplements of telecommunications services protection of their interests payments to members that resulting from their rela- had entered the scheme tions with the entrepreneur. previously. The rest is 38. Decision RBG-2/2017 profit paid to the scheme (final). founders. 39. Decision RBG-5/2017 43. Decision DOIK-4/2017 (final). against Recyclix Sp. z o.o. 40. Decision RBG-7/2017 with its registered office in (final). Warsaw and decision DOIK- 41. Companies subject to 8/2017 against OneLife DOIK-12/2017: PLN 16 mn proceedings in 2017: Fu- Network Limited with its other fines in total tureNet, FutureAdPro in the registered office in Belize PLN 20.7 mn Marshall Islands, Netlead- City (Belize). ers, CL Singapore in Singa- 44. The Act of 11 September Bank Millennium S.A. pore, One Life Network from 2015 on Insurance and Re- Belize, Mart Diamonds in insurance Activities (Journal for misleading information in response Warsaw, Proventus Herman of Laws of 2015, item 1844, i Wspólnicy Financial Group as amended). to consumer complaints in Katowice, Prevalue 45. This is a different Cooperative Owners Wealth between the currency buy Owner Cooperative in War- rate applied while grant- saw, Berkeley Foundation in ing loans and the sell rate Łódź, Questra Holding Inc. which is considered as in the British Virgin Isles, part of repayment. nature makes it more difficult to con- In October and December 2017, the Life insurance from the UKF duct administrative proceedings suc- President of UOKiK issued decisions – next chapter cessfully. Therefore, it is very important against: Recyclix Sp. z o.o. and OneLife On 2 June, UOKiK instigated explanat- to issue warnings against a potential Network Limited seated in Belize City ory proceedings to verify initially wheth- threat very quickly. as it found that the companies in ques- er insurance companies comply with tion conduct and promote pyramid-like the Act on Insurance and Reinsurance The Office closely cooperated with the incentive schemes under which con- Activities.44 It was verified whether en- Polish Financial Supervision Author- sumers buy packages in return for trepreneurs suggest, conclude and per- ity (the PFSA) and prosecutor’s office being allowed to obtain financial ben- form life insurance contracts with the which received offence notifications. efits. These benefits mainly depend on UFK in a way corresponding to the Act or Two proceedings were conducted enrolling new consumers into the sys- whether they resort to infringements or against entrepreneurs offering crypto tem, not on sales volume, which meets violations. Market practices and template currencies: DasCoin and OneCoin. The the criteria of a pyramid-like incentive contracts were subject to examination. popularity of crypto currencies is used scheme and, as a result, constitutes in many risky business models. As for a violation of collective consumer in- Currency spreads the undertaking that offered “OneCoin” terests. The Office ordered that these While granting loans denominated – OneLife Network Limited – UOKiK practices be discontinued.43 The deci- in a different currency, banks earn issued a warning due to possible loss sions are final. profits on spreads45 whose amount of substantial financial means by its and clear calculation rules are very consumers. important for borrowers.

39 2.1 2.2 2.3 2.4 2.5 Calendar of events Consumers' collective Supervision over Product safety and Laboratories interests and standard The Trade Inspection market surveillance contractual clauses Authority

Durable medium did not guarantee that the content of the do- IMPUGNED PROVISIONS – reasoned opinion on the case cuments could be accessed after the expiry of – EXAMPLES In January 2017, the President of UOKiK is- the contract, which would be necessary for the “adding/subtracting a margin of no more sued a reasoned opinion on the case of durable parties to the contract to pursue any claims. than 5%” (PKO BP) medium. The case involved a dispute between “average exchange rate of the National a consumer and a lender, Creamfinance Po- Durable media in the CJEU case law Bank of Poland (NBP) minus the pur- land, as to the way the wording of consumer In January 2017, the Court of Justice of the chase margin specified by decision of loan contract was delivered. The loan contract, European Union (CJEU) passed a judgement* the bank” (BPH) individual terms and conditions, and withdra- with material guidelines on durable media. The wal specimen were delivered to the customer case reviewed by the court concerned payment “average interbank exchange rates” once he logged in his account using an online services. The CJEU found that electronic docu- (Raiffeisen Bank Polska) website. In the opinion expressed by the Of- ments provided to customers can be deemed “average exchange rates on the foreign fice, UOKiK shared the consumer’s view and to have been delivered via a durable medium exchange market (forex)” found that neither the website nor user ac- only if the website or the system allow to re- (Deutsche Bank) count provided by the lender met the criteria of produce the information in an unaltered way a durable medium. In both cases, the wording in an appropriate period of time. could have been modified by the lender. It also make this argument in their complaints and the bank would respond that the * Judgement of the Court of 25 January 2017 in case C 375/15 BAWAG PSK Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG v Verein für Konsumenteninformation ECLI:EU:C:2017:38. entry into the register does not apply in this case. An entry of a clause into the register means that the provision is not Having analysed warnings from con- exchange rate to be used to calculate binding on consumers if the entrepre- sumers, UOKiK verified the spread the amount of repayment. None of the neur continues to employ that provision calculation rules applied by banks. As proceedings was completed in 2017. in template contracts. Therefore, in the a consequence, in 2017, the Office in- case of Millennium Bank, consumers stigated proceedings against 9 banks: Credits and financial counselling who challenged the provisions entered BGŻ BNP Paribas, BZ WBK, Bank Mil- UOKiK deals with unlawful practices in into the register may refer to the Judge- lennium, Deutsche Bank, Getin Noble the form of sale of financial services ment of the Appellate Court on this case Bank, Raiffeisen Bank Polska, PKO which do not match customer needs (ref. no. VI Aca 420/11) and the court is BP, Pekao and BPH. The actions of as well as counteracts any provisions bound by settlement by law. This means the Office pertain to the possible use which grossly violate consumer in- that Millennium Bank misled its cus- of abusive clauses in standard agree- terests. In 2017, the Office imposed tomers. The bank refrained from this ments, terms and conditions of ser- substantial fines on credit institutions practice within the course of the pro- vice as well as in annexes to mortgage and financial intermediaries. ceedings. However, the consequences loan contracts denominated in foreign of the practice were very serious as currencies. The Office questioned UOKiK received complaints regarding it could have discouraged a number of the provisions concerning an unclear Millennium Bank. The case concerned consumers from claiming their rights. manner for calculating currency ex- misleading consumers in responses As a result, the fine imposed on the en- change rates. The banks would often to their complaints that referred to trepreneur amounted to over PLN 20 refer consumers to Reuters, which abusive clauses as regards the man- million.47 Moreover, the Bank had to in- is a chargeable website, and curren- ner of calculation of mortgage loan form its customers about the decision cy exchange rate tables prepared by amounts and loan payments on the of the Office with immediate effect, i.e. the very banks. While doing so, the basis of Swiss franc exchange rate. before the decision came into force. In banks would not indicate any dates The entrepreneur used, among others, connection with the above, the Bank or frequency of their preparation and the provisions which were entered into sent letters on the matter and pub- publication. As a consequence, the the register of abusive clauses several lished an announcement on its website borrower was not able to estimate the years before.46 Customers would often and on Twitter. The company appealed.

40 2.6 2.7 2.8 2.9 Fuel quality control Out-of-court consumer Court judgements Cooperation with consumer system dispute resolution organisations and consumer ombudsmen

New law in the scope of failed to inform its customers of the In the years 2015-2017, mortgage loans and consumer loans actual costs of financial intermedia- the Office instigated tion when concluding the contract. For proceedings against The Act on Mortgage Loans and Su- these actions, UOKiK imposed a finan- pervision of Mortgage Loan Brokers cial penalty of over PLN 6 million.48 The and Agents* entered into force in July company appealed. 2017. It is the first Act to regulate, in a comprehensive manner, the process UOKiK also challenged a number of of advertising, offering, concluding and provisions used by EGFC in specimen executing mortgage loan agreements. contracts. Separate proceedings were The regulation is expected to improve conducted on this matter. As a result, the the transparency of the market’s offer- company received a fine of PLN 5.75 million.49 One of the issues referred banks as it challenged the ing and strengthen the position of consumers who are often the weaker part to in the prohibited clauses was inter- ways their customers were in disputes with the banks. In the years mediary’s remuneration – the wording notified about significant 2016-2017, UOKiK was actively involved in was ambiguous, which allowed the entrepreneur to maximise their prof- changes in the contracts the legislation work on the draft Act. The Office called for, among others, expos- its at the cost of customers. Contracts ure of information on APR, dependency of templates also forced consumers to any and all interest rate changes on the make statements which made it possi- The Office completed proceedings reference rate, and introduction of provi- ble to pursue any future claims. These against Europejska Grupa Finansowa sions concerning the register of lending were statements as to the reliability of Council S.A. (EGFC), conducting opera- institutions as well as supervision on the company’s operations or individually tions as Personal Finanse in 50 cities in entity in question. The solutions were negotiated provisions. The company Poland. The company offered financial taken into consideration. The Act also appealed against the decision. intermediation mainly to people who introduced changes in consumer loan needed financial means to pay their advertisement regulations. The Office UOKiK also imposed a penalty on Pr- current liabilities. Under concluded prepared an amendment to provisions in oculus Legal Firm for offering credits contracts, the entrepreneur undertook this regard. In the case of advertisements which were not adjusted to the needs to look for financial offers adjusted to containing data related to the cost of the and means of the customers. The com- consumer’s needs from various finan- loan, the set of compulsory information pany specialised in lending money to cial institutions. The loans offered by will have to be presented equally visibly, people who had not credit capacity and the entrepreneur significantly exceed- legibly and audibly as other information needed financial means to pay their ed the amounts requested by custom- pertaining to the cost of credit. Other prior liabilities. By way of decision is- ers. Financial intermediaries used consumer loan advertisements must sued in 2017, the Office found that the complex arguments to convince their contain information on APR that needs to Legal Firm manipulated information customers that the excess is allegedly be indicated in the same way. In line with on purpose, as a result of which the beneficial for them. The company also UOKiK suggestions, the act also intro- amounts exceeded the actual needs encouraged consumers with no credit duces supervision over lending institu- of customers and their repayment capacity to incur liabilities through tions as well as a register of those insti- capacity. UOKiK also accused the third parties. The company guaran- tutions kept by the PFSA**. company of excessive commissions teed that after a specific period of time that totalled around 20% of the credit * The Act of 23 March 2017 on Mortgage Loans the amount will be transferred to the and Supervision of Mortgage Loan Brokers and and were charged even where all of the consumer. However, under the provi- Agents (Journal of Laws of 2017, item 819). The Act activities were performed by a bank or sions of applicable laws, the assign- implements Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 46. Clauses were 47. Decision ment of liabilities requires creditor’s on credit agreements for consumers relating to included in the register DOIK-12/2017. consent. Moreover, the entrepreneur residential immovable property and amending Di- with entry numbers 3178 48. Decision RWR-5/2017. rectives 2008/48/EC and 2013/36/EU and Regulation and 3179. 49. Decision RWR-10/2017. (EU) No 1093/2010. ** For detailed information on remarks made by the Office, please refer to the Report for the year 2016. 41 2.1 2.2 2.3 2.4 2.5 Calendar of events Consumers' collective Supervision over Product safety and Laboratories interests and standard The Trade Inspection market surveillance contractual clauses Authority

Involvement in inter-ministerial Financial Innovation Growth Working Group (FinTech)

The purpose of the group established by the Polish Financial Supervision Au- thority was to identify and remove legislation obstacles which prevented the growth of this sector as well as to create a regulatory sandbox for entrepreneurs operating on this market. The goal was to create a separate, safe environment for experiments without legal conse- no agreement was concluded. Blank in the TV campaign period and within quences. The work of the group were promissory notes issued by the compa- 14 days from its end. The compens- conducted at 6 levels System, Payment, ny did not contain the required “non-en- ation consists in decreasing the interest Blockchain and AML, Capital, Insur- dorsable” clause. As a consequence, rate by 0.5% or returning the inter- ance, Consumer and Data Processing, the lending company could write any est charged for the last 6 months Crowdfunding, and Social Loans. UOKiK amount on the note and transfer the of loan repayment. In its decision, prepared 14 positions with regard to the claim to another person. The penalty UOKiK also challenged the repre- issues at hand. The work of the group imposed by the Office totalled PLN 5.8 sentative example applied in adver- came to an end in November 2017 with million.50 The decision is final. tisements.51 Getin Noble Bank com- presentation of a final report.* pared two representative examples Moreover, the Office verifies whether of a credit (with and without insur- * Report published on the PFSA website. lending companies fulfil their notifi- ance), which made it more difficult cation obligations. The law lays down for the customers to compare the advertising suggested. This way, con- detailed requirements for consumer terms and conditions of the credit sumers were misled. Moreover, both loan advertising while specifying key with offers presented by other banks. companies also promised in their information that should be presented For this infringement, the Office im- advertising that the money would be in a clear and understandable way. pose a fine of over PLN 1.7 million available on the customer’s account However, entrepreneurs do not always on Getin Noble Bank. The trader ap- within 15 minutes, and in reality this adjust their advertising material to pealed against the decision.52 only applied to those individuals their carrier. The Office questioned whose accounts were maintained by advertisements made by Getin Noble UOKiK also challenged the advertise-

Bank in 2015 that concerned consol- ments of 2 lending companies: Net 50. Decision RWR- 54. Decision RKR- idation credit “instalment lower by Credit and Incredit which assured 11/2017. 13/2017. 51. Banks are obliged by 55. Decision RPZ-4/2017. 5%”. The reservations were based on that new customers would receive law to present the lending 56. In connection with flyers, TV commercials, and online ad- their first loan of up to PLN 2 thousand terms and conditions the proceedings, UOKiK under which it is expected requested for the vertising. The font size of the inform- “for free”. In reality, the condition for to conclude at least 2/3 of submission of consumer ation required by law was not large free-of-charge loan was repayment the contracts for a given complaints on this matter. product. This is supposed 57. Decision RŁO-9/2017. enough, and the text screening time on time – in the event of default the to make it easier for 58. Decision RBG-4/2017. in TV spots was too short. The Bank customer had to pay a commission, customers to compare the 59. In light of the Act on offers of different banks Consumer Rights of 30 committed itself to provide public and sometimes interest. Any delays with regard to similar May 2014, the extension compensation for its customers who in loan repayment would therefore loans. of a contract is treated as 52. Decision RKR-4/2017. the conclusion of a new used the 5% consolidation credit offer entail a cost that was higher than the 53. Decision RKR-11/2017. contract.

42 2.6 2.7 2.8 2.9 Fuel quality control Out-of-court consumer Court judgements Cooperation with consumer system dispute resolution organisations and consumer ombudsmen

one of the 7 selected banks. Moreover, the practices be discontinued. The company no longer uses them. For Incredit counted 15 minutes from the company appealed against the deci- example, the entrepreneur awar- time of a positive application review, sion.55 Due to the harmful nature of ded himself a unilateral right to in- not from the moment of application operations, UOKiK issued a warning troduce “all the necessary changes submission. The advertising materials already within the course of proceed- and adjustments in the contractual for both companies included under- ings against the practices used by documentation”. By the same token, stated amount as to the effective an- Telekomunikacja Cyfrowa. he was able to shape the terms and nual percentage rate; the calculation conditions of the contract against of interest by Incredit was incorrect. A consumer warning was also is- consumer’s will. The Office imposed UOKiK imposed penalties on both sued against Nasza S.A. The Office a total fine of PLN 175.8 thousand for companies: over PLN 1.3 million on received several hundred complaints these clauses.57 The municipality ap- Net Credit53 and PLN 351 thousand on from deceived customers, mainly pealed against the decision. Incredit.54 The latter was also placed under the obligation to reimburse its Telecommunications advertising customers for the excessive interest In 2017, UOKiK imposed UOKiK also verifies whether market- charged. Both companies appealed ing content presented by telecommu- against the decision. a fine of over nications operators is reliable. In 2017, UOKiK imposed a fine of over PLN Telecommunications frauds 16 million on Orange Polska for un- The Office has observed frequent, fair advertisements “Superpromocja gross activities detrimental to con- Neostrady” and “Geopromocja dla sumers on the telecommunication Neostrady”.58 The company used TV services market. One of them involves commercials and billboard advertise- impersonating the current service ments to provide unclear information provider. about additional costs for consumers PLN mn on Orange Polska not having a landline phone. The Of- In 2017, the Office conducted pro- for unfair advertisements fice challenged the font size, length, ceedings against Telekomunikacja and air time of the displayed message. Cyfrowa in connection with warnings “Superpromocja Neostrady” Moreover, in radio advertisements the from consumers, mainly the elderly and “Geopromocja entrepreneur entirely passed over the and their families. The representa- dla Neostrady" issue of additional costs and only ex- tives of the company would call con- posed the promotional price of the sumers and pretend to be their cur- subscription fee. This way, the con- rent operator and offered conditions sumers were misled as to the actual of their services that would allegedly through consumer ombudsmen.56 The service price. The company appealed be more favourable to them. They sug- scheme was similar: impersonating against the decision. gested that the documents presented a specific operator and presenting to consumers for signature involve an offer that would be allegedly more Failure to respect the consumer’s a favourable change in the applicable beneficial. What is more, the logo of right to withdraw from the contract contract. However, the execution of the current service provider was pre- Under applicable laws, the extension the documents would lead to chang- sented in contracts. In 2017, the Office of a contract (“contract renewal”) is ing the supplier, with the promotional initiated proceedings in the present treated as the conclusion of a new rates applying for only two months (of case. At the same time, it conducted contract.59 In this case, the consumer which the customers were not noti- separate proceedings against Nasza has the right to withdraw from a con- fied). UOKiK imposed a fine of PLN S.A., this time concerning contract tract within the period of 14 days at no 0.5 million on the entrepreneur for templates. UOKiK held certain clauses extra cost. These requirements were unlawful practices and ordered that to be illegal and ordered that the not respected by ITI Neovision while

43 2.1 2.2 2.3 2.4 2.5 Calendar of events Consumers' collective Supervision over Product safety and Laboratories interests and standard The Trade Inspection market surveillance contractual clauses Authority

concluding distance contracts for nc+ Examples of challenged activities TV platform. The company activated the service without an explicit consent fine/public of consumers and provided incorrect entrepreneur course of action compensation information on contract cancellation. It regarded the TV service as an un- Biomed Centrum “notifications” about free treatments as part of PLN 39,222 cancellable service for providing di- Kruszka, Kruszka nationwide “We give health” and “Health for you” gital content. However, the key issue campaigns – assuring that it is not about selling products of the contracts did not lie with providing a specific content (e.g. a movie), » in reality: sale of irradiating lamps but rather ensuring the continuity of Carpe Diem Med offering a free-of-charge, home rehabilitation of PLN 27,964 watching TV channels under specific “spine, joints, rheumatic pains” – assuring that it is packages. By way of decision60 UOKiK not about selling products accepted a commitment from ITI Neo- » in reality, the treatment consisted of connec- vision to remove the consequenc- tion to an electrostimulator, which then could be es of its action. Former subscribers bought in a package with a mattress cover who bore unnecessary costs due to Housefire invitations to participation in free-of-charge PLN 360,012 withdrawal were offered reimburse- healthy lifestyle talks combined with the presenta- - return of incorrect tion of state-of-the-art massagers and possibility ment for their costs. As for persons promissory notes to of purchasing them who still wanted to prolong their con- customers tract to avoid financial consequence, » blank promissory notes with “on request...” - return of amounts clause were used in the case of instalment sale, they were offered free-of-charge ser- due to damaged goods which is contrary to the Consumer Loan Act vices. The decision also specifies pub- or packaging lic compensation for consumers who » impeding the return of goods – charging the received confirmation of the amend- costs of alleged damage to the product or its packaging without the possibility of verification ment to or conclusion of the contract of those circumstances by the customers too late, regardless of whether they made a complaint on this matter.

Premium services UOKiK undertook activities in connection tract. Part of them did that even pri- tivities with regard to Cyfrowy Polsat with information on irregularities in pre- or to UOKiK’s request (ITI Neovision, S.A. and Polkomtel Sp. z o.o. were mium services. The Office reacted to the Multimedia Polska, Multimedia Pols- continued in 2018. creation of a fake Media Expert profile in ka-Południe, UPC Polska). As a result social media. As a result of UOKiK activ- of activities undertaken by the Office, Exhibition sale ities in 2017, service providers verified Multimedia Polska, Multimedia Pols- Consumer interests are often violat- responses to complaints, reimbursed ka-Południe, and UPC Polska changed ed at various exhibitions. Sometimes consumers for their costs, and intro- the manner in which recordings are consumers are misled to buy an un- duced changes in internal procedures. provided to consumers, which is now necessary and too expensive product, more consumer-friendly. The remain- and then they face problems while The cases concerning recording ing undertakings provided only the re- trying to return those goods or ser- phone calls by telecommunications cordings of the calls during which the vices or making a complaint. It is very operators terms and conditions of the agreement often the case that the victims of these UOKiK checked whether telecommu- were amended, but they have changed practices are senior citizens who are nications operators provide consum- their practice as a result of interven- lured with a free-of-charge medical ers with recordings of sales phone tion of the Office (Netia, Orange Pol- examination, gifts, etc. In 2017, UOKiK calls aimed at conclusion of a con- ska, P4, T-Mobile Polska, Vectra). Ac- issued a number of decisions in this

44 2.6 2.7 2.8 2.9 Fuel quality control Out-of-court consumer Court judgements Cooperation with consumer system dispute resolution organisations and consumer ombudsmen

regard.61 The entrepreneurs would of pharmacists and their alleged re- 2.3 invite consumers to a free-of-charge commendations. The company avoid- Supervision over treatment, rehabilitation, whereas ed the fine as it committed itself to re- the Trade Inspection in reality various type of equipment, move the consequences of the unfair Authority dietary supplements, and cosmetics advertisement. It introduced at its own were sold. Apart from disguising the cost radio announcements suggest- commercial purpose of the meeting, ing that it could have mislead its cus- the infringements also concerned tomers through its advertisements of execution of unlawful promissory magnesium product “Chela Mag B6”.62 One of the institutions protecting con- notes, limitation of warranty rights, The Office also challenged the advert- sumer interests is the Trade Inspec- and discouragement from returning isements of “Pneumolan” and “Pneu- tion Authority (IH). Its tasks are per- the goods. Six entrepreneurs received molan Plus”. Their manufacturer – Wal- formed by UOKiK and Provincial Trade a total fine of nearly PLN 0.5 million. mark – committed itself to no longer Inspection Offices. As part of surveil- use any phrases in their advertisements lance over the IH, the Office prepares Dietary supplements that could be misleading to their cus- annual all-Poland control plans and Dietary supplements do not cure dis- tomers or suggest that their products monitors their implementation by the eases. Suggesting otherwise in mar- featured any healing properties. The Provincial Trade Inspection Offices. keting advertisements is a violation of company also undertook to print at its Controlling priorities are defined on legal provisions. UOKiK had reserva- own cost posters and guides on the the basis of irregularities identified tions as to the reliability of entrepre- properties of dietary supplements.63 in the previous years, their signifi- neurs in this respect. In connection UOKiK also issued a decision on an ad- cance and popularity of a given prod- with the above, in 2015, the Office called vertisement of “RenoPuren Zatoki Hot” uct category. Information obtained for verification of the content and form and “RenoPuren Zatoki Junior” dietary from the market, including consum- of advertisements, including food prod- supplements. The proceedings involved er complaints, is equally important. ucts. It also pointed to the need to create a social survey which confirmed that Inspection tasks comprise a pre-de- a code of best practices for the indus- a substantial part of consumers con- fined inspection catalogue concerning try. However, the offered solution did sidered the products to contain healing agri-food products, non-food prod- not meet the expectations of the Office. properties. This happened as a result ucts and services. The Office also First and foremost, the code refers to of the plot and phrases used in the ad- verifies whether entrepreneurs carry practices which may be eliminated on vertisement. The Office imposed a fine out their activities in a legal and reli- the basis of applicable provisions. The of PLN 25.8 million on Aflofarm (the able way. As for non-food products, Office also made critical remarks about manufacturer).64 The trader appealed inspections also refer to general expected sanctions and rules for oper- against the decision. product safety and compliance with ation of a disciplinary court. the New Approach Directive.65 The 60. Decision DOIK-3/2017 65. They relate to over 61. Companies and 20 groups of products, Provincial Trade Inspection Offic- In addition to an appeal for self-regu- decisions: Aqua Med e.g. electric equipment es also conduct their own activities RPZ-11/2017 (appealed) (including electronic lation of the industry, UOKiK also com- and Carpe Diem Med from equipment and household and interventions in connection with menced administrative activities. In the Opalenica RPZ-6/2917 appliances), toys, personal alarming news from the market. (appealed), Iscomed from protection equipment, years 2016-2017, in connection with Wrocław RPZ-9/2017 (ap- construction materials, Some of the inspected products are unclear advertisements, a total of 5 pealed), Housefire (former machines and elevators. subject to specialized research, e.g. name: Hausfeuer) from proceedings were instigated against Poznań RLU-7/2017 and in laboratories run by UOKiK. The dietary supplement manufacturers. Biomed Centrum Kruszka, Office also conducts proceedings for Kruszka from Smolnica RKT-11/2017 (appealed), appeals against decisions issued by In 2017, 3 initial decisions were issued. Exito from Opalenica RPZ- provincial IH inspectors. 7/2017 (no appeal). One of them concerned Olimp Labor- 62. Decision RBG-1/2017. atories. The reservations of the Office 63. Decision DDK-1/2017. concerned appealing to the authority 64. Decision DOIK-5/2017.

45 2.1 2.2 2.3 2.4 2.5 Calendar of events Consumers' collective Supervision over Product safety and Laboratories interests and standard The Trade Inspection market surveillance contractual clauses Authority

IH inspections* Overview of inspection activities Inter-departmental cooperation – non-food Agri-food product inspections products and medicines Retail food must be compliant with agri-food product quality requirements, both product inspections The Office takes part in the Coopera- features as well as product designa- tion Forum for Chemical Surveillance 8254 tion. It allows consumers to choose as part of arrangement concluded a product which will be relevant to between national institutions in charge their needs. It is prohibited by law to of this area. The forum allows to un- apply any practices which can be mis- non-food products dertake joint initiatives pertaining to and services leading, including falsification of food inspections and exchange best prac- inspections products. UOKiK prepares plans for IH tices in enforcement of the chemical 4286 activities to allow for a comprehensive regulations. The cooperation also com- inspection of food product groups in prises exchange of information on law terms of agricultural and food qual- infringements. The arrangements to be ity in retail sale. In 2017, there were made in the forum are reflected through general product 17 national inspection subjects in chemical surveillance activities under- safety inspections this respect. The inspections mainly taken by the Trade Inspection Authority. 1012 revolved around products which called The Forum is convened twice in a year. for a close cooperation with the State Sanitary Inspection (PIS) due to their UOKiK is not directly competent to ana- leading role in supervision. inspections on lyse medical products. However, due to compliance with New its role in consumer protection system, Approach Directive Inspections of non-food products the Office takes part in meetings of the 1552 and services inter-departmental team for falsified UOKiK cooperates closely with provin- medicines.*** The purpose of the team cial IH Inspectors also in the scope of is to minimize trade in falsified or illegal other inspections, inspections of non-food products and medicines which may pose a threat to such as the legality services. In 2017, there were 13 in- human health or life. of business activity, spection subjects in this respect. The reliability, price re- 2652 most frequent activities concerned vealing inspections quality and labelling of textile products and correct information about the prices. The purpose of the in- General product safety inspections UOKiK decisions spection was also to verify, inter alia, Products earmarked for the Polish on appeals against the content of certain chemical sub- market must be compliant with gen- provincial IH stances and the correct marketing eral safety requirements. The Trade In- 143 inspectors** of the equipment or car parts which spection Authority verifies whether the require certificates of approval. In products do not pose a threat to human the latter case, a total of 121 entre- health or life in ordinary use. The ex- preneurs were examined. As a result, amples of inspection priorities in 2017 * Data concern: inspections recognised in the UOKiK annual plan, IH own inspections, intervention inspections. reservations concerned 11 out of 351 on general safety were as follows: chil- The information on fuel quality inspections is presented batches with regard to certificates of dren's clothing, articles and furniture later in the Report. ** The number refers to appeals against decisions on approval. for small children, grills, tinders, do-it- the indicated inspections categories and on decisions regarding fuel quality. *** The Team for Falsification and Illegal Trade of Med- ical Products and Other Falsified Products Meeting the Criteria of a Medical Product.

46 2.6 2.7 2.8 2.9 Fuel quality control Out-of-court consumer Court judgements Cooperation with consumer system dispute resolution organisations and consumer ombudsmen

Ecodesign and inspections Cooperation with the State Sanitary Inspection of special-purpose bulbs

In 2017, the Trade Inspection Authority which is 10% less than in the previous Ecodesign consists of a number of EU in concert with the State Sanitary In- year (2016). The majority of reservations regulations which aim at popularisation spection controlled, inter alia, food ser- concerned labelling, e.g. lack of list of in- of energy-efficient solutions in lightning. vices provided by catering companies to gredients, necessary warnings, or the re- Energy-intensive products are gradu- hospitals, sanatoria, orphanages, social commended daily dose. Several samples ally withdrawn from the market, but care homes. The inspections covered were examined in laboratory conditions, there are exceptions to special-purpose 73 establishments which provided ser- with 11% of the samples being impugned. bulbs regulated by law. The products of vices to 282 institutions. Irregularities Following the inspection, the businesses this type must have specific technical were found in over 71% of the establish- withdrew the supplements which failed to parameters and cannot be intended for ments. The most evident non-conformi- meet the requirements from the market. domestic use. In February 2017, UOKiK ties included: missing information about 2017 was also marked by inspections organised a meeting with the Light- allergens, use of cheaper replacement conducted in connection with recom- ning Equipment Producer Association products, use of expired products, stor- mendations of the European Commis- “Pol-lighting” to discuss scheduled in- ing food in improper conditions, un- sion. They referred, without limitation, spections of such bulbs. The Office also derweight portions, non-compliance of to products covered by quality systems, prepared a training in applicable re- menus with the contracts. protected geographical indication (PGI), quirements for special-purpose lamps Moreover, the IH in cooperation with the protected designations of origin (PDO), for, inter alia, IH inspectors. In Q2 2017, State Sanitary Inspection also inspected Traditional Speciality Guaranteed (TSG), a national inspection of light sources for dietary supplements. The Trade Inspec- and organic products. The priorities also specialised purposes was carried out to tion Authority paid particular attention to concerned products subject to EU con- see whether they are compliant with the whether the information provided on the trol systems: fresh fruits and vegeta- Ecodesign requirements. packaging or websites did not mislead bles, olive oil. The inspectors selected consumers with regard to properties of products which were most often im- the products. Over 80 Polish undertak- pugned as part of previous inspections, ings from all across Poland were exam- e.g. frozen fish, catering products (in- ined. As a result of the inspection, 20% cluding meat and fish dishes, alcohol of product batches were challenged, and alcohol-free beverages).

yourself equipment and garden tools, Inspections within the scope of EU ment, machines (electrical appli- bikes for youths and adults. Apart from requirements – the New Approach ance), and personal protective equip- inspections requested by UOKiK, pro- Directive ment. Inspections allow to verify, inter vincial inspectorates also carried out Products available in the European alia, the documentation, labelling, their own inspections and interventions Union are obliged to meet specific and construction properties of the resulting from, inter alia, complaints safety requirements, regardless of products. In 2017, 5503 products from consumers and entrepreneurs. In which Member State they have been were subject to IH inspections. Res- total, 3819 products were examined,66 manufactured in or placed on the ervations were made as to the third with irregularities having been found market. Inspection activities aim product. As a result of lab activities, in 31% of the cases. 86 products were at enforcing the EU requirements. nearly 36% of products out of 689 ex- examined in laboratory conditions, with UOKiK defines priority areas in this amined goods has been challenged. the safety of 43% of articles being im- respect through its Annual Trade In- 66. The number in question concerns both inspections pugned. spection Plan. In 2017, these were, requested by UOKiK as well as own inspections conduct- among others, toys, electric equip- ed by IH officers.

47 2.1 2.2 2.3 2.4 2.5 Calendar of events Consumers' collective Supervision over Product safety and Laboratories interests and standard The Trade Inspection market surveillance contractual clauses Authority

2.4 Product safety and market surveillance

UOKiK is in charge of surveillance Trade Inspection Authority as part of UOKiK activities in numbers – 2017 over a general safety of non-food inspection activities both with regard general product safety products67 that cannot pose a threat to general product safety and con- to their users in an ordinary use. The formity assessment system. Moreo- compliance with the EU requirements Office is also one of the national in- ver, the Office carries out proceedings (the New Approach Directives) stitutions supervising the market in aimed at removing any irregularities terms of compliance with EU require- and threats to the market. undertaken explanatory activities ments as part of conformity assess- 93 ment system for selected categories General product safety activities 87 68 of non-food products. Products located in the European Union must The Office analyses the results of IH new proceedings comply specific requirements in order inspections and warnings, in particu- 69 to ensure the free flow of safe goods lar consumer complaints. The infor- 244 within a single market. The respon- mation obtained by the Office is used

sibility in this respect lies with en- in administrative procedures. Where issued decisions* trepreneurs and their operations are a product poses a threat to the life or 58 verified by, among others, the Office. health of its users, UOKiK may impose 335 UOKiK closely cooperates with the certain obligations on the manufac-

turer or distributor, including man- – of which discontinuation of the case due to datory product recall or withdrawal corrective measures undertaken by the entre- UOKiK activities in numbers – 2017 (market or consumer level). The Office preneur and elimination of the threat may also impose a financial penalty 36 on the entrepreneur. However, entre- 189 202 219 preneurs already at the stage of proceedings usually conduct activities – of which imposing obligations aimed at removing threats or unsafe 6 products from the market. As a con- 42 sequence, the majority of proceedings

68 is discontinued. – of which imposing financial penalties 12 As in previous years, UOKiK’s actions 7 usually concerned children’s cloth- reviewed received received ing due to the availability of these decisions on applications for reconsideration complaints inquiries and notifications products and frequency of irregular- of the case from the provided on unsafe ities. Such threats primarily concern 10 market answers products strings, cuffs, and elements which can received from 9 entrepreneurs easily fall off. They pose a real threat to the youngest users. * Examples of decision types, so the data does not sum up to the total number of issued decisions. 48 2.6 2.7 2.8 2.9 Fuel quality control Out-of-court consumer Court judgements Cooperation with consumer system dispute resolution organisations and consumer ombudsmen

Information on unsafe products Protection of life – carbon monoxide detectors Notifications on unsafe products RAPEX System An entity to have provided or released a product RAPEX is a major source of information on In 2017, carbon monoxide detectors, on the market is in charge of its safety. Entre- unsafe products in the EU. The European Com- which are products directly related preneurs are obliged by law to notify consumers mission publishes on its website notifications to the protection of customer life, and UOKiK about any products which may pose about reported products on a regular basis. In became the centre of attention of the a threat. They also use notifications to indicate 2017, Member States submitted to the system Office. undertaken corrective measures which are 2,199 notifications, 133 of which were for pro- Carbon monoxide is a strongly poison- monitored by UOKiK. The Office publishes the ducts first placed on the EU market by Polish ing gas which poses a threat to human submitted notifications on its website. In 2017, manufacturers or importers. UOKiK is in charge life. It may originate from leaky chim- 219 notifications were received by the Office, of the Polish contact point within RAPEX. In neys, coal, gas or oil stoves, as well as 87% of which pertained to mechanical vehicles. 2017, the Office submitted 122 notifications re- gas cookers. They were mainly notifications from large auto- garding unsafe products that were identified on motive corporations. Other concerned, inter alia, the Polish market. Over 100 people in Poland die every child care articles, toys, and electric equipment. Most often product notifications year as a result of CO asphyxiation If UOKiK finds that the product can also be avail- in the RAPEX and nearly 2000 are poisoned.** able in other countries, information about the threat is provided to the RAPEX. UE Poland Carbon monoxide is odourless and col- ourless. It can be sensed by special- Register of unsafe products Toys ised detectors. Non-compliance with Products considered by UOKiK to be non-com- 636 standards for these type of products pliant with safety requirements are entered into 76 may cause death, which us why UOKiK the Register of Unsafe Products.

ordered an inspection to be carried out Vehicles at the turn of 2016 and 2017. Subse- See 436 quent inspections were conducted Register of Unsafe Products 11 in Q3 2017. The Trade Inspection Au- Notification database thority verified at that time 92 de- RAPEX System Electric and lightning equipment tector models and challenged one 261 third of them. The highest number of 14 irregularities pertained to labelling and manual. They lacked, inter alia, major consumer warnings, e.g. that 67. Surveillance is the device must be installed by a spe- Product safety activities in the EU exercised in line with the cialist. Selected models were exam- Act of 13 April 2016 on Conformity Assessment ined in laboratory conditions which The Office carries out proceedings to and Market Surveil- proved that certain carbon monoxide verify compliance between products lance Systems (Journal of Laws, item 542, as alarm systems are not working prop- and the EU regulations – the New Ap- amended). erly. In 2017, 4 proceedings came to an proach Directives. If it is determined 68. The Act of 25 August 2006 on Fuel Quality end, as a result of which over 600 faulty that a particular product does not Monitoring and Control detectors were withdrawn from the conform to the requirements, UOKiK System (Journal of Laws of 2018, item 427, as market or their threats were removed. orders the removal of non-conform- amended). ities, product withdrawal, or recall from buyers. Over half of the decisions ** The data available at http://www.straz.gov. issued in 2017 lead to discontinuation pl/porady/czad. of the proceedings. This means that

49 2.1 2.2 2.3 2.4 2.5 Calendar of events Consumers' collective Supervision over Product safety and Laboratories interests and standard The Trade Inspection market surveillance contractual clauses Authority

entrepreneurs removed irregularities Health protection – safety of or withdrew the products from the anti-pollution masks Polish customs officers market. UOKiK’s actions usually con- One of the symptoms of air pollution inspected nearly cerned toys and electric equipment. is smog. Dangerous chemical compounds and dust are detrimental to human health. They may give rise to allergies, lung diseases, and even Information on products not compliant cancer. With growing awareness of with requirements. this subject, consumers are becoming more and more interested in filtering Record of non-conforming or hazardous half-masks used for protection against products. molecules – anti-pollution masks. In UOKiK keeps a register of non-conforming or ha- connection with the rising popular- zardous products. In 2017, 142 products were en- ity of these products and complaints, million toys undergoing tered in the register, and 45 products were unlisted UOKiK requested an inspection in this customs clearance due to elimination of threat from the market, e.g. regard. In 2017, the IH verified 10 mask through market recall.* models. All of them were tested in the at the border laboratory of the Central Institute for ICSMS System Labour Protection – National Research The Information and Communication System for Institute in Łódź. Two models did not Market Surveillance (ICSMS) enables the col- feature adequate protective proper- Effectiveness of UOKiK’s activities: lection of information on products that do not ties and were permeable to harmful toys (2017) meet the requirements of EU harmonisation dusts that are present in the air. UOKiK legislation. It also allows for the exchange of has thus far instigated administrative such information between market surveillance proceedings in one case concerning authorities of the EU Member States. UOKiK is in a non-compliant half-mask. In another charge of the Polish contact point within ICSMS. case, the entrepreneur appealed with 148 notifications sent to entrepreneurs In 2017, UOKiK submitted 15 notifications to the UOKiK against the decision of the Trade system due to the location of the trader placing Inspection Authority prohibiting fur- a non-conforming product on the market in ther sale of a non-compliant product. another EU Member State. The two cases were continued in 2018 and the companies concerned may not See sell half-masks until a ruling is passed. 67 309 recalled products (items) Register of non-conforming or hazardous products ICSMS In the case of three other half-masks, the inspectors found that they did not * Article 61 sec. 4 of the Act on Conformity Assessment and Market Surveillance Systems. satisfy certain official requirements, e.g. in manuals. The Trade Inspection Authority sent a letter to the entrepre- 920 removed irregularities neurs concerned, informing them that they could undertake voluntary corrective efforts. All entrepreneurs undertook efficient corrective measures which consisted in supplementing the official requirements.

50 2.6 2.7 2.8 2.9 Fuel quality control Out-of-court consumer Court judgements Cooperation with consumer system dispute resolution organisations and consumer ombudsmen

Toy safety UOKiK is in charge (KAS), and provincial IH inspectors. During Children are a particularly vulnerable re- of the national market the campaign, Polish customs officers in- cipient group. UOKiK regularly orders in- surveillance system spections of products intended for children. spected nearly 1.5 million toys undergoing In particular, the content of phthalates is customs clearance at the border. If there It creates a number of institutions rel- verified – these are chemical compounds were any reservations, the case was referred evant to specific non-food products. which make the plastic soft and flexible. The to the Trade Inspection Authority which is- UOKiK monitors in particular inspec- standards allow phthalates to reach a spe- sued 58 opinions, 49 of which were negative. tion activities for compliance with the cific concentration. Once exceeded, they may As a result, nearly 700,000 toys have not been requirements specified in the selected be detrimental to human health. In terms of allowed to enter the Polish market. Some of acts of the EU harmonisation legisla- product safety, the majority of complaints them lacked the required documentation or tion (so-called “conformity assessment and inquiries addressed to UOKiK in 2017 labelling, which meant that no there was no system”). concerned toys. evidence of fulfilment of the safety require- At the end of 2016, as part of the Visegrád ments in effect in the EU. 55 samples were UOKiK consists of a Market Surveillance Group (V4) Poland initiated activities regard- examined in laboratory conditions, 25 of them Steering Committee. It is an inter-de- ing unsafe toys imported outside the EU. The were found to feature an excess in the con- partmental team which is used to coor- purpose of the action was to eliminate any centration of phthalates, sometimes even by dinate various institutions as part of the toys which may constitute a chemical threat several hundred times. All the challenged system market surveillance system. The and undergoing customs clearance in the samples came from China. Thanks to a joint team is crucial to ensure a coherent ap- V4 region and to strengthen cooperation in action of the agencies, nearly 30 thousand proach to tasks. An important element of inspecting whether the products imported toys were destroyed, i.e. all the toys which the efficient market surveillance system from third countries are safe. In Poland, contained unacceptable phthalates levels. In involves a close cooperation between the Czech Republic, Slovakia, and Hungary the years 2013-2017, in connection with the customs office and market surveillance alike, the customs and authorities cooperat- inspections of toys, UOKiK issued 142 deci- authorities which allows to identify un- ed with each other to eliminate the threats. sions concerned with products containing safe products already at the border and The activities in Poland were undertaken in phthalates. As a result, over 74.5 thousand prevent them from entering the country. September and October 2017, and involved items which posed a serious threat to chil- UOKiK, the National Fiscal Administration dren’s health were recalled from the market.

51 2.1 2.2 2.3 2.4 2.5 Calendar of events Consumers' collective Supervision over Product safety and Laboratories interests and standard The Trade Inspection market surveillance contractual clauses Authority

2.5 2.6 Laboratories Fuel quality control system

Some products subject to inspections As other products, fuels must meet made by the Trade Inspection Authori- Activities undertaken in the UOKiK certain quality standards. UOKiK ty is subject to a specialised examina- laboratories in numbers – 2017 manages the fuel quality control and tion. Such examination usually takes monitoring system in this regard.69 place in the UOKiK’s laboratories. The The Office prepares inspection plans, Office has eight research units at its which are later implemented by the disposal, five of which deal with food 4759 provincial IH offices. The Office also samples examined, 2578 of which were com- products. The scope of activities of the pliant with the statement or legal provisions runs a specialist fuel laboratory. As remaining laboratories include: test- for non-conforming fuels, UOKiK is- ing of fuels, toys, textiles, and other sues decisions requiring businesses non-food products. Each laboratory to pay costs of laboratory tests of holds a Polish Centre for Accredit- fuel. Moreover, the Office also con- ation certificate, which means that 41 143 ducts proceedings for appeals against they are competent to assess wheth- parameters decisions issued by provincial IH in- er the samples subject to examination spectors who impose sanctions on are compliant with the applicable reg- inspected businesses for failure to ulations. Thanks to specialised ana- post information on the content of lyses, it is possible to recall products bio-components in the offered liquid of an inappropriate quality or posing 60 38 fuels at their fuel stations. The list of a threat. proficiency testing new research petrol stations and wholesalers, along programmes methods with the results of conducted inspec- The Office laboratories function in line tions, is published by UOKiK on its with the quality management system website. specifying the general requirements Thanks to inspection for testing laboratories in accord- activities, the number of The Trade Inspection Authority ance with PN-EN ISO/IEC 17025. This scrutinises almost all types of fuels standard specifies the requirements irregularities discovered available on the market. Regular infor technical competence in the field dropped considerably, spections have been conducted since 2003. of measurements, among others. and has remained, Back then, the share of liquid Every year, the UOKiK units take part fuels that failed to meet the quality re- in a several dozen programmes for since 2015, below quirements totalled 30%. Over time, interlaboratory comparative studies, thanks to inspection activities, the the results of which point to their high number of irregularities discovered operational standards. The laborator- dropped considerably, and has re- ies also develop new examination mained, since 2015, below 3%. methods. 69. The Act of 25 August 2006 on Fuel Quality Monitoring and Control System (Journal of Laws of 2018, item 427, as amended).

52 2.6 2.7 2.8 2.9 Fuel quality control Out-of-court consumer Court judgements Cooperation with consumer system dispute resolution organisations and consumer ombudsmen

LIQUID FUELS LPG AUDIT RESULTS

suspected offense notifications submit- 43 ted to prosecutor’s office 939 374 UOKiK decisions ordering businesses randomly controlled stations randomly controlled stations 48 to cover the costs of laboratory tests and collected samples and collected samples information provided to the Energy Regulatory Office (URE) on violation of the 69 conditions of licenses for trading in liquid fuels and violations of the Energy Law

UOKiK decisions on appeals against 2.34% 2.14% the obligation to cover the costs of 10 laboratory tests of challenged samples of challenged LPG samples

IH decisions on recall of the non-con- 7 forming fuels

Overview of activities The IH issued several decisions on The quality of liquid fuels is controlled market recall for any non-conforming in two ways. Above all, the selected fuels. Moreover, the institution provid- fuel stations are randomly examined. ed the Energy Regulatory Office (URE) In 2017, 2.34% of selected samples with information on 69 filling stations were challenged, almost the same and fuel wholesalers that were found amount as in 2016 (2.26%). The irreg- in breach of the conditions of licenses ularities were more often identified for trading in liquid fuels and of pro- in petrol (1.5%) than diesel (3.44%). visions of the Energy Law. The Presi- The random Liquefied Petroleum Gas dent of the URE is empowered to im- (LPG) tests conducted in 2017 have pose relevant fines in this respect. If shown irregularities in the case of there was a reason to believe that an 2.14% of the samples analysed (1.42% offence has been committed, inspec- the year before). tors submit relevant notifications to the prosecutor’s office. The Trade Inspection Authority in addition scrutinises those entrepreneurs which have been accused with irreg- UOKiK cooperates with the Ministry ularities as part of prior inspections of Energy on a regular basis. The or which were indicated in alarming goal is to exchange information on the warnings from the market. The infor- situation on the fuel market. In 2017, mation is obtained from drivers, the a close cooperation was established police, customs and tax offices. In due to amendments to the national 2017, inspectors challenged 3.76% of regulations concerning liquid fuels. oil and petrol samples.

53 2.1 2.2 2.3 2.4 2.5 Calendar of events Consumers' collective Supervision over Product safety and Laboratories interests and standard The Trade Inspection market surveillance contractual clauses Authority

2.7 Out-of-court consumer dispute resolution

The Act on Out-of-Court Consumer Dispute Resolution entered into force ADR entities registered in 2017 on 10 January 2017. The changes in the national legislation resulted from PUBLIC ENTITIES PRIVATE ENTITIES the need to implement the EU regu- 70 lation in this regard. The Act intro- industry industry duces a new model for out-of-court consumer dispute resolution, which is financial telecommu- usługi railway financial aviation also referred to as amicable or altern- services nications energetyczne transport services transport ative dispute resolution (ADR). services services services and postal services UOKiK has been vested with new com- The Financial The President The Ne- The Rail Banking Air Passenger petence regarding proceedings for Ombudsman of the Office gotiation Passeger Arbitrator Watchdog a register of entities authorised to The arbitra- of Electronic Coordinator Rights attached to “Friendly conduct amicable dispute resolution tion court Communica- attached to Ombudsman the Polish Flying” proceedings. The Office’s activities attached to tions the President attached to Bank mainly concern the assessment of the Polish of the Polish the President Association Financial Energy Regu- of the Office applications and arrangements with Supervision latory Office of Rail institutions applying for ADR status. Authority Transport Prior to issue of the decision, UOKiK analyses a number of documents horizontal specifying how the organisation op- Trade Inspection Authority – sale of goods and other services, such as tourist, erates, such as regulations, articles real estate development, and renovation services of association.

In the first year since the establish- with their notification obligations. The ment of the ADR system in Poland, Office also organises periodical meet- In 2017, UOKiK expressed opinions on authorised entities received over 18 ings with those institutions to ensure a number of legislation projects related thousand cases. The applications an efficient implementation of tasks. to the established ADR entities and their were usually addressed to the Trade Two such meetings were conducted competence. The Office also developed Inspection Authority – over 8.4 thou- in 2017 – in February and November. regulations which adjusted the rules of sand. They mainly concerned shoes, operation of the Trade Inspection Author- clothes, audio/video devices and white ity to its new tasks in this regard (for more 70. The Act of 23 Septem- 21 May 2013 on alternative goods, as well as air travel. Consum- ber 2016 on Out-of-Court dispute resolution for information, please refer to the chapter ers also reported problems with utility Consumer Dispute consumer disputes and on legislation work). Resolution (Journal of amending Regulation suppliers, telecommunications com- Laws of 2016, item 1823). (EC) No. 2006/2004 and panies, railway operators, and banks. The new law is intended Directive 2009/22/EC resulted from the need to (Directive on consumer into national legislation ADR) (Official Journal of UOKiK monitors operations carried Directive 2013/11/EU of the European Union, L 165 the European Parliament of 18.06.2013, p.1). out by ADR entities, e.g. compliance and of the Council of

54 2.6 2.7 2.8 2.9 Fuel quality control Out-of-court consumer Court judgements Cooperation with consumer system dispute resolution organisations and consumer ombudsmen

2.8 Information on the amicable Court judgements dispute resolution system

REGISTER OF ADR ENTITIES Register of ADR entities is available on UOKiK website. In 2017, 8 new authorised entities were entered into the Judgements in cases concerning Overview of judgements register, 6 of which were public and 2 of the violation of collective consumer which were private. The date included interests SOKiK – the judgement in the register is also submitted to the of 25 September 2017 European Commission which publishes In matters pertaining to collective on the appeal| of Allianz Polska72 the list of all institutions carrying out interests of consumers, entrepre- In 2013, UOKiK issued a decision re- such proceedings that are notified by EU neurs have the right to appeal against ferring to the provisions of template Member States via ODR (Online Dispute UOKiK’s decisions to the Regional insurance contracts, fixtures and Resolution) platform. Court in Warsaw – the Court of Com- fittings as well as autocasco. The in- petition and Consumer Protection surer applied provisions excluding (SOKiK) in Warsaw. If the court does the company’s liability in situations WEBSITE not agree with the settlement referred where compensation had to be paid UOKiK conducts a website intended to in the decision, it is allowed to repeal by law. These were, among others, the for out-of-court dispute resolution or change it, in particular by changing cases of exclusion of liability for dam- www.polubowne.uokik.gov.pl. The web- the amount of financial penalty im- age caused by persons close to the in- site also contains a register in the form posed on the entrepreneur. The Court sured person or persons performing of a browser of authorised institutions. of Appeal in Warsaw (SA in Warsaw) is work in the apartment. As a result, the In 2017 the Office conducted an informa- the court of second instance, and the company's clients were misled about tion campaign on this matter (for more Supreme Court (SN) decides on cassa- their rights. By the same token, they information, see the chapter on information appeals. The UOKiK website con- were able to pursue claims. SOKiK tion and educational activity). tains a judicial decision database.71 dismissed the entrepreneur’s appeal and sustained the financial penalty of Judicial decisions in cases concerning over PLN 5 mn imposed by UOKiK. CONTACT POINT infringement of collective consumer The court found that the action of Al- UOKiK runs a contact point to provide interests in the years 2015-2017 lianz was intentional and the punish-

aid to consumers and entrepreneurs SOKiK SA ment was adequate. on matters pertaining to out-of-court in Warsaw 95 SN dispute resolution. In 2017, there were SOKiK – the judgement 328 electronic advices and 504 phone of 28 September 2017 73 advices. The majority of the cases con- 65 on the appeal of Open Finance cerned consumer sales. UOKiK also In 2014, the Office accused Open gave advices at individual meetings. Finance of resorting to unfair market 44 practices while informing about the 36 34 32 possibility of taking out unit-linked insurance (ULI) policies. The Company highlighted the benefits and passed 12 over the circumstances in which the 71. The decisions passed 72. File reference number 4 after 1 September 2015 VI AmA 3/17. 1 investment may generate losses. Nor are published in the court 73. File reference number did it report on the costs associated 2015 2016 2017 judgements database. XVII AmA 20/15. with termination of the contract dur-

55 2.1 2.2 2.3 2.4 2.5 Calendar of events Consumers' collective Supervision over Product safety and Laboratories interests and standard The Trade Inspection market surveillance contractual clauses Authority

ing its term. SOKiK shared the Office’s SN – the judgement of 26 April 2017 stance and sustained the penalty of on the cassation appeal by UOKiK76 over 1.6 million. In 2012, UOKiK imposed a fine of over PLN 0.5 million on Polbank. When SOKiK – the judgement informing customers about the rules of 24 October 2017 the appeal of for monetary award, the entrepreneur Polkomtel74 passed over an important informa- UOKiK concluded through a decision tion which was one of the conditions. in 2014 that Polkomtel was guilty of Polbank was taken over by Raiffeisen violation of collective consumer in- which appealed with SOKiK and sub- terests. The company would make it sequently submitted an appeal. The difficult for consumers to exercise bank claimed that it did not have the their right to withdraw a distance right to participate in the proceedings contract or terminate it. Polkomtel because it had not taken the public provided unreliable information on law obligations pertaining to Polbank. the rights of customers concluding The Court of Appeal shared that line distance contracts. For these actions, of reasoning and decided that there UOKiK imposed a financial penalty of must be a special regulation which al- over PLN 8 million. SOKiK fully upheld lows the transfer of public law oblig- the Office’s decision and dismissed ations. According to the court, Article the company’s appeal. 494 of the Code of Commercial Com- panies is not a sufficient legal basis in Court of Appeal – the judgement of this regard. The President of UOKiK 8 March 2017 the appeal of P475 lodged a cassation appeal, as a result Complaints and judgements issued – 2017 In 2011, UOKiK imposed a fine of over of which the judgement was dismissed PLN 495 thousand on P4 for its mis- by the Supreme Court and the case general product safety leading advertising. On the basis of was subject to another review. compliance with the EU requirements the advertisement’s content, the con- (the New Approach Directives) sumer could expect free text mes- Judgements on general product sages, whose number was specified in safety issues and conformity of Complaints to UOKiK decisions made the offer, until the end of the account’s products with EU requirements by entrepreneurs with the WSA validity period. The situation looked 3 different in reality: depending on the Companies are entitled to appeal 5 topped-up amount, not only the num- against UOKiK decisions concerning Complaints to UOKiK decisions dismissed by ber of the text messages, but also the general product safety issues and the WSA period of their validity was limited. The conformity of products with EU re- 2 decision was upheld by SOKiK in 2015. quirements (the New Approach Direct- 1 In 2017, the matter was brought before ives) to the Provincial Administrative Complaints to UOKiK decisions sustained by the Court of Appeal which held that Court (WSA). Moreover, companies the WSA UOKiK was incorrectly determined may also lodge a cassation appeal 0 the extent of the offence’s damage against WSA judgements to the Su- 0 potential. As a result, the court and preme Administrative Court (NSA). reduced the penalty down to over PLN Cassation appeals against WSA judgements lodged with the NSA 330 thousand. 1 1

56 2.6 2.7 2.8 2.9 Fuel quality control Out-of-court consumer Court judgements Cooperation with consumer system dispute resolution organisations and consumer ombudsmen

Case law on matters concerning Complaints and judgements issued – 2017 appeals against decisions made by provincial IH inspectors77 and decisions imposing an obligation to incur lab fees 25 11 3 The President of UOKiK is an authority Complaints Complaints Complaints for appeals against decisions made by to UOKiK to UOKiK to UOKiK provincial IH inspectors in connection decisions decisions decisions made by en- dismissed by sustained by with current proceedings and, in this trepreneurs the WSA the WSA regard, he or she settles cases for with the WSA which appeal measures were submitted with regard to administrative acts issued by inspectors. Moreover, UOKiK conducts proceedings and makes rulings and decisions imposing on an entrepreneur an obligation to cover the costs of fuel quality tests.

It is allowed to appeal to the WSA 74. File reference number 77. The data does not XVII AmA 26/15. contain judgements on against UOKiK rulings. Cassation ap- 75. File reference number general product safety peals against WSA judgements are VI ACa 1644/15. issues and conformity 76. File reference number of products with EU processed by the Supreme Adminis- III SK 15/16. requirements (presented trative Court. in a separate table).

57 2.1 2.2 2.3 2.4 2.5 Calendar of events Consumers' collective Supervision over Product safety and Laboratories interests and standard The Trade Inspection market surveillance contractual clauses Authority

2.9 Cooperation with consumer organisations and consumer ombudsmen

Cooperation with consumer ombudsmen UOKiK cooperates with district (municipal) consumer ombudsmen who inform the Office about any problems on the market identified by them. A direct communication is also ensured as part of meetings in the Branch Offices of UOKiK which aim at information exchange and integra- tion of the environment. Regardless of the above, UOKiK decided to improve communication with ombudsmen. As a result, it prepared a special newslet- ter, with the first two editions being issued in November and December 2017.

The President of UOKiK is assisted by the National Council for Consumer Ombudsmen which acts as an opinion and counselling body. In 2017, the Council was convened twice to discuss a number of issues related to the implementation of consumer policies. case basis.78 In 2017, UOKiK allocated to help resolve any disputes in this re- Cooperation with non-governmental a total of nearly PLN 2.7 mn for this gard. In Q1 2018, the Centre was in- organisations purpose. The amount is similar to the corporated into the UOKiK structure. UOKiK works closely with non-gov- one spent in 2016. ernmental organisations involved in the protection of consumer rights. As in previous years, UOKiK cooper- Joint activities pertain to education ated in 2017 with the European Con- and information policy, counselling, sumer Centre (ECC), which is a part of warning about threats, and issuing the European Consumer Centres Net- 78. The rules for commis- activities is determined opinions on legal acts. work – ECC-Net. The network com- sioning tasks to NGOs for annually in the State prises all EU Member States, along consumer protection and Budget Act. Information the funding procedures about calls for proposals The Office organises competitions with Island and Norway. ECC’s top are laid down in the Act on is posted on UOKiK’s web- through which it orders these or- priority is to inform consumers about Public Benefit Activities site and in UOKiK’s Public and Volunteer Work. The Information Bulletin, and ganisations to carry out tasks related their rights in relation to cross-border amount of funding that also made available in the to providing support on a case by purchases of goods and services and may be allocated for such registered office of UOKiK.

58 2.6 2.7 2.8 2.9 Fuel quality control Out-of-court consumer Court judgements Cooperation with consumer system dispute resolution organisations and consumer ombudsmen

Statement of grants awarded – 2017

FREE COUNSELLING AND LEGAL CONSUMER HELPLINE IN 2016-2017 ASSISTANCE (A TWO-YEAR CONTRACT) – 2017 Organisation: Organisation: Polish Consumer Federation Association of Polish Consumers and Consumer Foundation Grant amount: Grant amount: PLN 1.3 mn PLN 1.1 mn Task results: 64 772 legal advices, including: Task results: • 4 955 written addresses 72 021 advices • 4 270 legal advices • 54 887 direct advices • 660 pleadings

CONSUMER E-COUNSELLING CENTRE SENIOR CONSUMERS AND DIRECT SALES – (TWO-YEAR CONTRACT) – 2017 RIGHTS AND THREATS

Organisation: Organisation: Association for the Districts "Aquila” and “Euro-Concret” Associations

Grant amount: Grant amount: PLN 225 thousand PLN 40.9 thousand

Task results: Task results: 21 050 advices 10.000 flyers and 9 meetings with 3300 guides on 1000 posters pre- senior citizens in consumer rights pared by UOKiK various locations for seniors were have been printed were organised prepared and and distributed and held distributed

59 3.1 3.2 3.3 3.4 Legislative work Social surveys Information International cooperation and market analyses and educational activities

60 To the significant activities of the UOKiK in the area of competition and consumer protection belong: shaping legal environment, conducting social research and market analysis as well as promoting anti-trust provisions and consumer rights. Involvement of the UOKiK in the international cooperation, especially within the EU market, is also important.

61 3.1 3.2 3.3 3.4 Legislative work Social surveys Information International cooperation and market analyses and educational activities

3.1 Legislative work

UOKiK co-creates legal solutions aimed at developing a legal system that will efficiently protect consumer List of regulations interests and support the development of competition. The Regulation of the Council of Min- Apart from regulations designed by the Office, isters amending the Regulation on the it is equally important to ensure that the legislation manner of co-operation of the Trade In- spection Authority bodies with the dis- process of government and non-government projects trict (municipal) consumer ombudsman, is monitored. In 2017, UOKiK analysed a total of 1589 central and local government administration authorities, inspection author- draft acts and positions to draft acts of the Sejm, with ities, and non-governmental organisa- a view to issuing an opinion on the potential impact on tions representing consumer interests. competition and the situation of consumers. The Regulation of the Prime Minister amending the Regulation on the principles of organisation of provincial IH 3.1.1 inspectorates. sumer Dispute Resolution, e.g. regu- National legislation lations on the institution of Railway The Regulation of the Prime Minister Passenger Rights Ombudsman acting – Regulations for the organisation and Legislative work in UOKiK’s area of within the office the President of the operations of the Trade Inspection Au- competence Office of Rail Transport, Negotiation thority for out-of-court resolution of Coordinator acting within the office of consumer disputes. Regulations implementing the Act of the President of the Energy Regulato- 23 September 2016 on Out-of-Court ry Office and other public entities con- The Regulation of the Council of Minis- Consumer Dispute Resolution ducting proceedings for out-of-court ters amending the regulation on prin- The Office prepared a number of consumer dispute resolution. ciples of remuneration paid to employ- documents which adjust the current ees other than civil servants hired in regulations to solutions provided for Framework project for the Draft Act government administration offices and in the Act on Out-of-Court Consum- amending the Act of 16 September the employees of other units. er Dispute Resolution. The changes 2011 on the Protection of the Rights concerned, among others, the rules of Buyers of Apartments or Detached of operation of the Trade Inspection Houses (so-called Developer Act) Authority and remuneration issues The main purpose of the suggested ulations as well as the specification of for recently established ADR entities. amendments is to improve the ef- already developed solutions. ficiency of protection of buyers of In 2017, UOKiK also issued opinions apartments or detached houses, e.g. One of the priority is to better protect on legal acts in terms of compliance where the developer goes bankrupt. the advance payments made by future with the requirements of the Act of 23 The increased consumer protection on apartment owners. UOKiK intends September 2016 on Out-of-Court Con- the market entails both new legal reg- to do away with the unsecured type

62 of open housing trust accounts. Ac- housing trust accounts offered by the Civil Code. The UOKiK’s position counts of this type may compromise banks. Moreover, the Office also en- was shared by the Ministry of Justice. customers’ savings where the invest- gaged in consultations with the Min- Moreover, UOKiK expressed a number ing company goes bankrupt. The draft istry of Infrastructure and Construc- of remarks, mainly of constitutional regulation specifies matters related tion as well as the Ministry of Finance. nature, regarding the suggested tran- to the maintenance of a housing trust The issue of eliminating open housing sitional provisions. According to one account, including how to make trans- trust accounts was subject to an opin- of the suggested solutions, any claims fers to and from this account, and pro- ion by the Economic Committee of the pursued before the entry into force of vides for controlling obligations of the Council of Ministers that shared the the act that did not fall under the stat- bank. Pursuant to the UOKiK’s sug- view expressed by the Office and rec- ute of limitations would be governed gestion, the customers’ contributions ommended that UOKiK and the Minis- by the previous limitation periods. are to be conditioned on the progress try of Infrastructure and Construction The UOKiK’s remark was shared by of construction work at the site. This jointly prepare a draft act amending the legislator. The work on the act was will mitigate the risk of all money be- the Development Act. continued in 2018. ing lost in the case of a potential bankruptcy of the developer or of the bank. Regulation amending the Regula- Draft Act on Mortgage Loans and Prior to transferring the money to the tion on information provided for the on Supervision of Mortgage Loan developer, the bank will be required to purpose of issuing an opinion on Brokers and Agents verify diligently whether the developer a scheduled state aid 2017 was marked by parliamentary has the title to the land, whether the The amendment adjusted the previous work on the Draft Act on Mortgage building permit is valid, and whether national legislation to the amended Loans and Supervision of Mortgage no debt restructuring or bankruptcy legal act, and in particular to Regu- Loan Brokers and Agents that was proceedings are in progress. If any lation (EC) as regards the notification prepared by the Ministry of Finance. problems are encountered, the bank forms and information sheets.79 The Act was adopted on 23 March 2017 will have the right to suspend the and entered into force on 22 July 2017. payment until all irregularities are Legislative work performed on the corrected. UOKiK intends to regulate initiative of other institutions 1) Implementation of Directive residence reservation agreements 2014/17/EU concluded, for instance, for a period Draft Act amending the Civil Code, of time required to obtain a bank loan. the Code of Civil Procedure, and the The Act implements Directive The suggested changes also comprise Act on Consumer Rights 2014/17/EU of the European Parlia- pre-contractual obligations of devel- The Act came into being on the initiat- ment and of the Council of 4 Febru- opers, procedures for handing over ive of the Minister of Justice. The ba- ary 2014 on credit agreements for apartments and reporting defects, sic regards made by UOKiK concerned consumers relating to residential sanctions for failure to provide the the changes regarding the statute of immovable property and amending buyer with protection measures, along limitations for claims pursued by Directives 2008/48/EC and 2013/36/ with the rights and obligations of the entrepreneurs against consumers. parties to the construction contract The Office found that they should not 79. Regulation of the Council of Ministers in the event of bankruptcy of the bank be placed in the Act on Consumer of 12 December 2017 keeping the housing trust account. Rights which substantially pertains amending the Regulation on information provided to the nature of distance contracts for the purpose of In connection with the suggested reg- and contracts concluded away from issuing an opinion on a scheduled state aid ulations, UOKiK conducted an ana- the business premises. The changes (Journal of Laws of 2018, lysis of the situation on the develop- suggested by the Ministry are hori- item 19). The changes resulted from Regulation ment (real estate) market and scruti- zontal in nature, covering each and (EU) 2015/2282 of 27 nised the scope of bankruptcy on the every case of justified claims, which November 2015 amending Regulation (EC) No part of development companies and is why they should be resembled in 794/2004.

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EU and Regulation (EU) No 1093/2010. The act in question comprehensively regulates issues of mortgage loans. The purpose of the regulations is to increase the comparability and transparency of the lenders' offers and strengthen consumer position on the mortgage loan market. The act regulates, inter alia, basic information provided through a mortgage loan advertisement, the pre-contractual obligations of creditor and credit intermediary, rules for counselling services, activities related to the conclusion of a contract, obligatory contract clauses, early credit payment, contract withdrawal, requirements for mortgage loan intermediaries, entities into the Consumer Loan Act. into the register of lending institu- agents, and staff, register of credit Most of UOKiK’s postulates were im- tions. The commencement date of this intermediaries, surveillance over in- plemented. activity is the date on which the insti- termediaries. The Act also forbids tution is entered into this register. The lenders to grant credits in currencies 2) Changes in the Consumer Loan Act register is maintained by the Polish Fi- other than the currency pertaining to nancial Supervision Authority. More- the majority of consumer’s income or a) Introduction of a register of lend- over, it is maintained in an ICT system of their assets (or indexed/denomin- ing institutions and PFSA surveil- and released on the PFSA website. ated in that currency). lance over such institutions An entry into the register is made at request of the entity that intends to UOKiK actively participated in the From the very beginning of work on conduct business activity consisting work on the draft Act by, inter alia, the mortgage loan act, UOKiK called in granting consumer credits. The communicating a number of remarks for the introduction of an authority draft regulation also provides for re- and suggestions concerning the draft for supervision of lending institutions quirements for applications for entry act. The remarks concerned, inter into the Consumer Credit Act, along into the register of lending institutions alia, obligatory information provided with the establishment of a register of as well as the amount of fee for entry through advertisements (UOKiK’s such institutions. The regulations en- applications as well as those for entry suggestion was to emphasise infor- visaged requirements and, once met, change or deletion. In line with appli- mation on effective annual percentage the trader could carry out business cable regulations, a lending institution rate – EAPR), procedure for entering activity consisting in granting consum- is obliged to notify the Polish Financial into a contract, contractual provisions er credits. Despite the introduction of Supervision Authority about each and on the determination of interest rate a penalty for violation of these provi- every change in the data included in an (making any and all changes contin- sions, there was no institutionalised entry into the register immediately, i.e. gent on the reference rate), conditions supervision, which raised concerns as no later than 7 days from the date of under which credit intermediaries to the efficiency of current regulations. such changes. may refer to the term “independent In light of anticipated amendments to adviser”, and the definitions of stat- the Consumer Loan Act, a lending in- b) Changes related to European utory terms, along with incorporating stitution is allowed to could carry out Commission’s remarks as to the provisions on the register of lending business activity consisting in granting correct implementation of Directive institutions and surveillance on such consumer credits once it is entered 2008/48/EC

64 As part of works on the draft act, UOKiK and intends to proportionally combine indexed to/denominated in foreign prepared changes in the Consumer the level of fulfilment of those require- currencies: Loan Act, the purpose of which was to ments with the manner of providing • MPs Draft Act on Restructuring specify provisions challenged by the information which gives rise to an obli- Loans Denominated in or Indexed to European Commission in its analysis of gation to present information required Foreign Currencies other than PLN the act in terms of correct implementa- under the act. For example, where an and Introduction of a Prohibition of tion of Directive 2008/48/EC of the Eu- advertisement informs about a 0% Granting such Credits,80 ropean Parliament and of the Council commission, the remaining informa- • Draft Act presented by the President of 23 April 2008 on credit agreements tion should be equally emphasised so of the Republic of Poland on Rules for for consumers and repealing Council that consumers are able to familiarise Returning Certain Amounts Due un- Directive 87/102/EEC. This specifi- themselves with it at ease. der Credit and Loan Contracts,81 cation comprised certain provisions • MPs Draft Act on Special Rules for concerning, inter alia, exclusions from There is also another solution: a cred- Restructuring Residential Loans in applicability of the act, the definitions itor or credit intermediary in consum- Foreign Currencies in connection with of terms provided for in the act, and er loan advertisements other than the Change in the Foreign Exchange information provided to consumers those referred to in Art. 7 sec. 1, i.e. Rates to PLN.82 before the execution of a contract. The advertisements which do not present purpose of the introduced changes was any numerical data on the costs of The first and third draft acts provide to clearly exclude any doubts in inter- consumer loan, is obliged to provide for restructuring rules for credits de- pretation which could potentially lead consumers with information on the nominated in/indexed to foreign cur- to the enforcement of the act contrary effective annual percentage rate in rencies. The second draft regulation to its ratio legis. at least the same clear, readable, and concerned returning certain amounts audible format as other information due under credit and loan contracts c) New provisions on consumer loan presented in the advertisement. indexed to/denominated in foreign advertisements currencies (in connection with pro- The possibility of using the above solu- hibited contractual clauses providing UOKiK also prepared changes in tion results directly from Art. 4 sec. 1 for unrestricted specification of for- consumer loan advertisement regu- of Directive 2008/48/EC. UOKiK put an eign exchange rates used for credit lations. The Consumer Loan Act in- emphasis on this solution due to the settlement). In 2017, a total of 5 Public cludes a new provision, stating that need to provide consumers with a clear Finance Commission and sub-com- the information referred to in Art. 7 and understandable information on mission meetings were held to discuss (i.e. obligatory information provided in credit costs as well as to encourage problems related to the functioning of consumer loan advertisements with lenders to apply advertisements with contracts for credits indexed to/de- numerical data as to the cost of con- APR as the only (and, at the same time, nominated in foreign currencies. sumer loans) must be provided to the the most complete and most compa- consumer in at least the same clear, rable) information on the cost of con- Government position on MPs Draft readable, and audible format as the sumer loans. Under the influence of Act amending the Civil Code numerical data on the cost of con- the comments submitted by UOKiK, According to the draft act, seller’s li- sumer loans. The purpose of the ad- an analogous solution was provided ability period under warranty starts ditional requirement is to ensure that for advertising of mortgage loans. anew as of the date of replacement of the information required under Art. 7 a defective good with a product free is exposed at least in the same way as Package of draft acts on loans in- from defects. UOKiK noticed that the the constituents of the advertisement dexed to/denominated in foreign wording “as of the date of replace- that would call for their presentation. currencies ment” may give rise to interpretation The above solution is an extension of UOKiK was involved in the work con- the requirement for visibility and com- ducted by the Public Finance Commis- 80. Print no. 729. 81. Print no. 811. prehensibility, provided for in Art. 7, sion concerning 3 draft acts on loans 82. Print no. 877.

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doubts as to a specific moment in time market. The Office also noticed that prohibit discounts in exchange for from which seller’s liability period is the definition of “consumer” includ- recommending the company to new to run anew. In practice, this wording ed in the draft regulation of the Min- customers. The work on the draft act could be detrimental to consumers and istry is unreasonable since this issue was continued in 2018. shorten the warranty period. UOKiK is already covered by the Civil Code. suggested to specify unambiguously The draft regulation also referred to Draft Act on Tourism Events and Re- that it is about the date of release of the system for handling complaints lated Tourist Services the said good (free from defects) to the made by the users of payment ser- Thanks to the UOKiK’s position, the consumer. This remark was included vices. UOKiK pointed out that both in draft act was extended with a provi- in the government position. the case of complaints about financial sion on a 14-day cancellation period services as well as in the case of out- – in case of contracts for participation Act on Distribution of Insurance of-court consumer dispute resolution, in a tourist event concluded away from The activities were performed on the act should make references to the the business premises, without giving the initiative of the Minister of De- Polish regulations that are already the reason. velopment and Finance. The purpose applicable: the Act on Handling Com- of the draft act was to increase the plaints by Financial Market Entities Draft Act amending the Telecommu- protection of customers entering and on the Financial Ombudsman and nications Act and certain other acts into insurance contracts. The Office the Act on Out-of-Court Consumer UOKiK pointed to the need to stand- made certain remarks to specify the Dispute Resolution. The comments ardise the present provisions on with- meaning of durable medium used in made by the President of UOKiK were drawal from the change in the terms the act with regard to the manner taken into consideration. The legisla- and conditions of an insurance con- of providing consumers with inform- tion work regarding the act was contract made by a subscriber via remote ation on the nature and scope of op- tinued in 2018. communication methods. The issue erations of an insurance agent as was regulated both in the present well as pointed to the need to specify Draft Act amending the Act on Finan- Telecommunications Act as well as the nature of the reference to the Act cial Market Surveillance and certain in the Act on Consumer Rights. This on Consumer Rights indicated in the other acts would give rise to various interpreta- draft act. The Office also suggested to The draft regulation of the Ministry of tions of the provisions by entrepre- specify the regulations for resolving Finance intends to increase the secur- neurs. The Ministry of Digitisation insurance cases by way of out-of-court ity of financial market participants by shared the UOKiK’s view and crossed consumer dispute resolution. The using financial services provided by off any and all provisions from the Tel- UOKiK’s comments were taken into various so-called internet platforms. ecommunications Act that would give consideration. The Act entered into The UOKiK’s remarks concerned, inter rise to an unsystematic enforcement force on 1 February 2018.83 alia, mutual exchange of information of the law. The work was continued in with the PFSA in connection with the 2018. Draft Act amending the Act on Pay- performance of statutory tasks. As ment Services and certain other acts part of inter-ministerial consultations, Draft Act amending the Aviation Act Draft regulation of the Ministry of the Office expressed a number of re- (UC 32) Development and Finance introduced marks resulting from an analysis of In 2017, the Minister of Infrastructure changes in the Act on Payment Ser- Forex risk. In terms of consumer pro- proceeded with legislation work on vices in connection with the imple- tection in this area, UOKiK suggested Draft Act amending the Aviation Act mentation of Directive (EU) 2015/2366 to: further limit so-called financial by referring it to various consultation of the European Parliament and of the leverage; introduce notification oblig- stages, i.e. to the Committee of the Council (PSD2) which repealed the ations for entrepreneurs to inform Council of Ministers and the Euro- regulation in this regard. New provi- about investment risks; introduce an pean Committee. UOKiK made once sions also provide for better consumer obligation to record phone calls used again made remarks to the draft act protection on the payment service as a basis for concluding transactions; to ensure:

66 • cohesion with the requirements of tached houses. The Office represent- authorities for approval and market the ADR directive and implementing atives took part in two consultation surveillance regarding the area pro- Act on Out-of-Court Consumer Dis- conferences concerning the project vided for in the regulation. Full imple- pute Resolution; in question and bilateral meetings on mentation of the provisions calls for • systemic cohesion with regard to invitation of the Ministry of Develop- a separate act in this regard. At the national consumer protection provi- ment. The UOKiK’s remarks were fully beginning, the Ministry proposed that sions; and implemented. the Trade Inspection Authority should • that the level of consumer protection be one of the authorities to be vested provided for in applicable regulations Draft Act amending the Act on Con- with the new tasks. However, having does not deteriorate. formity Assessment System, the analysed the arguments presented by Act on Conformity Assessment and UOKiK, which put an emphasis on the The consultations lasted from April Market Surveillance Systems, and main purpose of the regulation, i.e. to to July 2017. UOKiK representatives certain other acts protect and improve the quality of air, took part in, inter alia, meetings of the UOKiK closely cooperated with the the Council of Ministers ultimately as- Working Group for Preparation of the Ministry of Development (currently: signed this task to the Inspectorate for Work of European Committee where the Ministry of Entrepreneurship and Environmental Protection. The Office they presented the Office’s remarks to Technology), which is responsible for also prepared provisions concerning the draft act of a European nature. All legislation issues pertaining to the fines. The work on the draft act was the remarks expressed by UOKiK were market surveillance system, in order continued in 2018. taken into consideration by the legis- to adjust national legislation to the lator, which allows to maintain coher- solutions provided for in three regula- Draft act amending the Act on Fuel ence between the Aviation Act and tions of the European Parliament and Quality Monitoring System and reg- the requirements of the Out-of-Court of the Council.84 Member States are ulations on requirements for the Consumer Dispute Resolution. obliged to establish an efficient con- quality of liquid fuels, methods of trol system and provisions concerning testing liquid fuels’ quality and of Draft Act on Hereditary Management sanctions for violation by businesses collecting liquid fuels’ samples by Natural Persons of the regulations. The hardest part The work was carried out at request The draft regulation of the Ministry of was to introduce the term “formal in- of the Minister of Economy (at pres- Development (currently: the Ministry consistencies” into the provisions and ent: the Minister of Energy). UOKiK of Entrepreneurship and Technology) prepare transitional provisions which expressed a number of remarks aimed at regulating the legal condition would allow for efficient execution of concerning the projects referring to, of an enterprise of a natural person control and legal measures by market inter alia, definitions, division of com- following his or her demise. The pre- surveillance authorities. The work on petence, and manner of performing sented solutions in certain areas did the draft regulation also took place inspection tasks. The majority of re- not take into consideration the rights in 1H 2018. The Sejm approved the of consumers resulting from applic- amended act on 10 May 2018. 83. The Act of 15 Decem- burning gaseous fuels. ber 2017 Distribution of 85. Regulation (EU) No able regulations. UOKiK made re- Insurance (Journal of 2016/1628 of the Europe- marks about, inter alia, the issue of Draft act on market surveillance of Laws, 2486). an Parliament and of the 84. Regulation of the Council of 14 September consumer rights resulting from reg- and type-approval for internal com- European Parliament 2016 on requirements ulations for warranties, guarantees, bustion engines for non-road mobile and of the Council (EU) relating to gaseous and 2016/424 of 9 March 2016 particulate pollutant and complaints. In connection with machinery on cableway installations, emission limits and the planned institution of a hereditary Draft regulation of the Ministry of De- Regulation of the Europe- type-approval for internal an Parliament and of the combustion engines for manager, UOKiK remarked that it is velopment and Finance is related to Council (EU) 2016/425 of non-road mobile machin- necessary to consider safety meas- the entry into force of the EU regula- 9 March 2016 on personal ery, amending Regula- 85 protective equipment, and tions (EU) No 1024/2012 ures resulting from the present pro- tion concerning approval systems. It Regulation of the Europe- and (EU) No 167/2013, and visions in terms of protection of the dictates that Member States are re- an Parliament and of the amending and repealing Council (EU) 2016/426 of 9 Directive 97/68/EC. rights of buyers of apartments or de- quired to, inter alia, establish relevant March 2016 on appliances

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marks was taken into consideration, introduction of provisions for resolving Draft Act of the Joint Commission of and the work was continued in 2018. disputes between water supply and sew- the Government and Entrepreneurs erage enterprises and recipients. The and Ombudsman for Entrepreneurs/ Draft amendment to the Act on Cos- changes include a number of solutions the Act on Ombudsman for Small and metic Products which are favourable from the viewpoint Medium-sized Enterprises90 The applicant was the Minister of of consumer interests. The Act entered The activities were performed on the Health. The Act adjusts the Polish into force on 1 January 2018.88 initiative of the Minister of Develop- legislation with regard to administra- ment and Finance. UOKiK challenged tive obligations and tasks arising from Enterprise Law and implementing the justifiability of establishment of the the EU regulation on cosmetic prod- regulations commission. Entrepreneurs are pro- ucts.86 The Office made a number of The purpose of the act is to ensure fessional entities which have an appro- remarks concerning the competence of a comprehensive regulation of general priate background and strong enough the Trade Inspection Authority, in par- rules for business activity in Poland. lobby in the regulatory process. In the ticular its new tasks. These remarks UOKiK expressed many remarks to opinion of UOKiK, the establishment were implemented in the draft act. the draft act. The crucial ones con- of a special forum that establishes co- cerned a principle under which the operation between the society and the Act amending the Act on Packaging Enterprise Law would have priority government was not justified. The Of- and Packaging Waste Management over other provisions provided for un- fice’s view is that the proposed regula- and certain other acts der separate legislation, if the former tions could lead to the priority of major The provisions of the proceeded draft turned out to be more favourable for organisations at the cost of small entre- act concerned, inter alia, new tasks entrepreneurs. The Office suggested preneurs. Ultimately, these provisions for the Trade Inspection Authority. that the clause be crossed off as it were crossed off the draft act. More- The remarks made by UOKiK were gave rise to interpretation doubts and over, the UOKiK’s remarks involving fully implemented. The Act entered violated the rule of appropriate legis- the competence and rights of the Om- into force on 1 January 2018.87 lation. It was also pointed out that budsman for Entrepreneurs (referred the precedence of the Enterprise Law to at a later stage as Ombudsman for Act amending the Act on Collective means that the interests of entrepre- Small and Medium-sized Enterpris- Water Supply and Collective Sewer- neurs will have priority in situations es) were implemented. Those remarks age Services where their entrepreneurs should yield concerned, inter alia, an obligation to UOKiK co-participated in the prepa- to important public interests relat- comment on requests addressed to ration by the Ministry of Environment ed to, inter alia, defence, protection of authorities by the Ombudsman, which of the Draft Act amending the Act on consumers or of the health and life of in practice could be used by certain en- Collective Water Supply and Collective citizens. The UOKiK’s request was im- trepreneurs to hinder administrative Sewerage Services. The act is a continu- plemented through exclusions, e.g. with procedures. UOKiK was also excluded ation of activities from 2016 (informa- consideration of an important public from the provision which gives the Om- tion on this subject is also contained interest. According to the draft act, in- budsman a very broad access to files in the Report for 2016). The majority spection activities should be performed kept by other authorities. Moreover, the of suggestions expressed by UOKiK in essence in the presence of the per- Office managed to remove a solution at the stage of development of the bill son being controlled or his or her rep- under which the Ombudsman would has been taken into account. Some of resentative. At request of the Office, the be authorised to cease an inspection them referred to the establishment of exclusion catalogue was extended with at an entrepreneur conducted under a regulatory authority and its tasks. This inspections conducted under the Act on separate regulations. This meant that role was entrusted to the head of the Competition and Consumer Protection. UOKiK inspections could be withheld Regional Management Board of Water UOKiK was also involved in a legislation without any limitations, which, by the State Water Management Body. The act work concerning the implementing reg- same token, would make it more diffi- also includes remarks concerning the ulations to the Enterprise Law that en- cult to obtain evidence in the course of procedure for approval of tariffs and tered into force in March 2018.89 proceedings.

68 Draft Act on the Openness Draft Act on Providing Financial of Public Life Assistance to Audiovisual The purpose of the act conducted by Productions Special Services Coordinator is to in- The draft act on the initiative of the crease the transparency of manage- Minister of Culture and National Her- ment of the state and its wealth. The itage provided for granting donations Office made remarks within the course to producers, co-producers, and en- of inter-ministerial arrangements. trepreneurs providing services to the They referred, without limitation, to producers of audiovisual works whose provisions concerning the disclosure production costs could be recognised of processed public information and eligible expenses. The financing would lobbing activities in the regulatory be provided by the Polish Audiovisual process. Under those provisions, the Fund. UOKiK made remarks about the President of UOKiK would be vested transparency of rules for providing with powers to impose financial penal- state aid, some of which were imple- ties on any entrepreneurs who do not mented. The work was continued in comply with internal anti-corruption 2018. procedures or apply ostensible or in- efficient procedures. Amendment to the Act on Renewable Energy Sources Draft Act amending the Act on Road The main purpose of the amendment Transport and the Act on Drivers’ initiated by the Ministry of Energy was Working Time to adjust the act to the EC remarks UOKiK expressed its doubts as to presented within the course of noti- whether the new regulation would Draft Act on Supporting New fication procedure. The amendment also comprise transportation organ- Investments also provided for new aid mechanisms, ised solely for the purpose of distribu- The regulation performed on the ini- with regard to which UOKiK presented tion of transportation costs. In such tiative of the Minister of Development remarks and suggested improve- a case, service providers would be and Finance suggests a new instruments to ensure they are compliant unable to meet the new requirements ment for supporting entrepreneurs with the EU regulations on state aid. in terms of licence costs. The inter- in the investment decision-making The work was continued in 2018. pretation doubts resulted from the process. The support in the form of adopted definition of intermediation in CIT and PIT release is expected to be the transport of persons. The Minis- an incentive to invest all across Po- ter of Infrastructure and Construction land. The regulation was consulted 86. Regulation (EC) no 90. The draft regulation 1223/2009 of 30 Novem- initially concerned the Act assure that the regulation in question with UOKiK on a working basis as the ber 2009 on cosmetic of the Joint Commission does not concern such situations. The draft act and secondary legislation products. of the Government and 87. Journal of Laws of Entrepreneurs and Office also made remarks concerning provided for regional investment aid. 2017, item 2056. Ombudsman for Entrepre- situations in which service providers As part of inter-ministerial consulta- 88. The Act of 27 October neurs. Subsequently, the 2017 amending the Act on title was changed to the lose licence to transport persons and tions, the Office expressed remarks Collective Water Supply Draft Act on Ombudsman verify the carriers in this regard. At aimed at adjusting the draft act to the and Collective Sewerage for Small and Medi- Services and certain other um-sized Enterprises. further stage, the legislator commit- State Aid Law, which were partially acts (Journal of Laws of The Act of 6 March 2018 ted transportation drivers to notify the implemented. The work on the draft 2017, item 2180). on Ombudsman for Small 89. The Act of 6 March and Medium-sized Enter- intermediary about being deprived of act was continued in 2018. 2018 – implementing prises (Journal of Laws of the licence to provide the services in regulations to the 2018, item 648). Enterprise Law and other question. acts concerning business activity.

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Draft Act on Transformation of the ment and of the Council on Require- a review of consumer law (Fitness Right of Perpetual Usufruct of De- ments for the Availability of Products Check of EU consumer and market- veloped Land for Housing Purposes and Services. The directive is hori- ing law), which consists of 6 direc- into the Right of Ownership of Land zontal in nature, and its purpose is to tives.92 The results were presented in The draft act provided for the trans- increase the availability of selected May 2017 in the Report of the Fitness formation, by virtue of law, of shares products and services for people with Check. UOKiK was involved in the re- in the perpetual usufruct of land de- disabilities and functional deficien- view and took part in consultations veloped with multi-residential build- cies (e.g. elderly people). about the directed revision of the ings, whereas the property rights EU consumer law and the Directive would also be granted to entities Amended proposal for Directive on on injunctions for the protection of conducting business activities. Up certain aspects of contract for sale consumers' interests. The purpose of to this date, perpetual usufructuar- of commodities91 these activities is to evaluate the ef- ies would receive confirmations of At the beginning, the regulation was ficiency of procedural measures for transformations, but in such a case supposed to provide for online sale the protection of collective consumer they would be obliged to incur trans- only. The amended proposal also interests. formation fees for a period of 20 or comprises suggestions of Member 33 years. UOKiK expressed its re- States as to the extension of the Di- Proposal for Regulation of the Euro- marks at the initial stage of the reg- rective with direct sale. Preliminary pean Parliament and of the Council ulatory process that were accepted activities in the Working Group lasted on cooperation between national by the Ministry of Infrastructure and until June 2017. UOKiK made its re- authorities responsible for the en- Construction. The work has been marks about both the position of the forcement of consumer protection temporarily suspended, but they government (accepted by the Com- laws are expected to be resumed in 2018. mittee on European Affairs on 15 The work on the proposal was con- November 2017) as well as particular tinued in 2017. Its purpose was to 3.1.2 institutions. The Office gives a posi- strengthen the cooperation mech- tive view on a pro-consumer nature anisms in the consumer protection International legislation of many of the suggested solutions. 91. Directive of the an Parliament and of the However, it has doubts as to the se- European Parliament and Council; Directive 93/13/ Apart from its activity in the area of quential mode of consumer rights in of the Council on certain EEC of the Council of 5 aspects concerning con- April 1993 on unfair terms national legislation, UOKiK is activ- the event of elimination of product’s tracts for the online and in consumer contracts; ely involved in legislative initiatives non-conformity with the contract. other distance sales of Directive 1999/44/EC of goods, amending Regula- the European Parliament in the European Union. The Office Under previous regulations, consum- tion (EC) No 2006/2004 of and of the Council of representatives prepare Government ers were allowed to freely select their the European Parliament 25 May 1999 on certain and of the Council and aspects of the sale of con- stance for EU projects and take part relevant measures. The new solution Directive 2009/22/EC of sumer goods and associ- in EU Council working groups, where involves an obligatory sequence of use the European Parliament ated guarantees; Directive and of the Council and re- 98/6/EC of the European detailed provisions of draft European of the measures available to consum- pealing Directive 1999/44/ Parliament and of the acts are negotiated. ers, which limits the level of their pro- EC of the European Council of 16 February Parliament and of the 1998 on consumer protection. UOKiK emphasised the need Council. tection in the indication Examples of UOKiK’s activities con- to discuss issues pertaining to the 92. Directive 2005/29/EC of the prices of products of the European Parlia- offered to consumers; cerning international legislation exchange of commodities and related ment and of the Council of Directive 2009/22/EC of practices within the Working Group. 11 May 2005 concerning the European Parliament unfair business-to-con- and of the Council of 23 Work on the Directive on Require- The Office also expressed a number sumer commercial April 2009 on injunctions ments for the Availability of Products of remarks concerning the wording of practices in the internal for the protection of market and amending consumers' interests; and Services particular provisions while indicating Council Directive 84/450/ Directive 2006/114/EC of In terms of market surveillance, necessary specifications. EEC, Directives 97/7/EC, the European Parliament 98/27/EC and 2002/65/EC and of the Council of 12 UOKiK representatives were involved of the European Parlia- December 2006 con- in legislation procedures concerning New Deal for Consumers ment and of the Council cerning misleading and and Regulation (EC) No comparative advertising. draft Directive of the European Parlia- The European Commission conducted 2006/2004 of the Europe-

70 area. The evaluation of the previous tion concerning, inter alia, the need situations where there is no objective Regulation 2006/2004 proved that it is to provide pre-contractual informa- reason for a different treatment of do- necessary to improve and modernise tion on a durable medium. The work mestic and foreign customers. the regulation. The most important on the draft regulation was continued changes included refer to the scope in 2018. According to the EC, unjustified of its application, introduction of new geo-blocking and discrimination on categorisation of entities and scope of Draft Directive on certain aspects the grounds of the place of residence their competence, and the extension concerning contracts for the supply is incompatible with the single market of minimum competence of the com- of digital content (Digital Content idea and contributes to the low scale petent authorities, and the introduc- Directive) of cross-border e-commerce. UOKiK tion of new instruments. UOKiK was In 2017, the Working Groups of the actively supported the Ministry of De- a leading institution on the Polish European Council continued to work velopment (at present: the Ministry side. In consultations with the Euro- on Digital Content Directive. UOKiK of Entrepreneurship and Technology) pean Parliament, problematic issues was involved in issuing opinions on as part of negotiations concerning concerned compensation, statute of subsequent versions of the draft di- detailed provisions of the regulation. limitations, consultations with con- rective and made remarks about the The main objective of the Office was to sumers, consumer organisations, and negotiative instructions provided by ensure a high level of consumer pro- other entities, as well as an obligation the representatives of the Ministry tection. The regulatory process came to exchange data on consumer com- of Justice. It also took part in regular to an end in February 2018, with the plaints. In June 2017, a new compro- consultations of particular provisions new regulation entering into force on mised wording of the Regulation was of the directive. In June 2017, the work 3 December 2018. approved at COREPER. The arrange- at the Council gave rise to a gener- ment was made in line with the word- al acceptance of the draft directive, Draft directive to empower the com- ing presented by the Presidency. The which brought about negotiations over petition authorities of the Member provisions of the regulation also takes the draft directive as part of three-lat- States to be more effective enfor- into account the many suggestions eral meetings of the European Direc- cers and to ensure the proper func- made by Poland. So far, the proposal tive, the European Commission, and tioning of the internal market (ECN+) has been discussed at 18 meetings of the Council of the European Union. The directive aims at strengthening the Working Group on Consumer Pro- and harmonising the rights of con- tection and Information. The regula- Regulation on geo-blocking93 sumer protection authorities of the tion was approved in December 2017. The general aim of the draft regula- Member States. The directive aims tion on geo-blocking is to provide con- to ensure that national authorities, Proposal for a Directive of the Euro- sumers, regardless of their national- based on the same legal basis, have pean Parliament and of the Council ity or place of residence or business relevant tools to enforce the EU com- establishing the European Electronic in the EU, with better access to goods petition law, which will lead to an in- Communications Code and services in the single market. The crease in the efficiency of operations The draft regulation consists of a hori- draft regulation in particular revolved carried out by national bodies and, zontal recasting of four Directives around preventing direct and indi- as a consequence, create a common (Framework, Authorisation, Access rect discrimination in cross-border ground for enforcement of the compe- and Universal Service). Each of the e-commerce (when shopping online) tition law. The draft directive is pro- Directives contains measures appli- as well as when travelling to other ceeded at the Council of the European cable to electronic communications Member States to purchase goods or Union and the European Parliament. networks and to electronic commu- services. The proposal imposes, inter 93. Regulation (EU) customers' nationality, nications service providers. The Code alia, certain obligations on traders 2018/302 of the European place of residence or also introduces a number of changes under which they cannot, in certain Parliament and of the place of establishment Council of 28 February within the internal market regarding the rights of end users. circumstances, discriminate against 2018 on addressing and amending Regula- UOKiK presented a number of re- consumers on the basis of the place unjustified geo-block- tions (EC) No 2006/2004 ing and other forms of and (EU) 2017/2394 and marks concerning the draft regula- of residence. The initiative focused on discrimination based on Directive 2009/22/EC.

71 3.1 3.2 3.3 3.4 Legislative work Social surveys Information International cooperation and market analyses and educational activities

Examples of UOKiK’s activities concerning preliminary proceedings

Proceedings C-176/17 Profi Credit Polska Proceedings C-176/17 before the Court of Justice of the European Union (CJEU) were initiated by the District Court in Siemianowice Śląskie. The court delin- eated a preliminary question to determine whether the provisions of Directive 93/13/EEC and of Directive 2008/48/EC object to pursuing by a consumer of a claim by means of a bill of exchange in the course of an order for payment procedure under which the national court cannot examine a consumer loan contract and is restricted to examine the bill of exchange in terms of formal requirements. During the procedures on Poland’s stance before the CJEU, UOKiK shared the court’s doubts as to compliance of certain provisions of the Code of Civil Procedure with Directive 93/13/EEC and Directive 2008/48/EC. The Office pointed out that according to the CJEU 3.1.3 case law, a national court is obliged ex Preliminary issues officio to examine any unfair nature of In 2017, UOKiK received contractual terms and conditions, as long as the court has necessary infor- The Office regularly monitors the case mation at its disposal and regardless law of the Court of Justice of the Eu- of whether the proceedings are simpli- ropean Union (CJEU). In particular, it fied. In the opinion of the Office, national analyses preliminary proceedings, i.e. provisions should not prevent or make those in which the CJEU, at request of it more difficult for courts to obtain a national court, interprets EU regu- information and documents necessary lations. The Office analyses such to conduct such assessment. UOKiK in proceedings in terms of justifiability particular assessed that the Polish legal of accession to them if a given ruling system features a number of situations could affect the Polish judicature. new preliminary issues which make it difficult, or even impos- provided by the CJEU sible, for courts (by lack of obligation to on consumer-related present the wording of a contract to the court in the case of order for payment matters based on a bill of exchange or accounting

72 books) to analyse the wording of a contract previously determined abusiveness of the provi- before a German court distributed an adver- from the viewpoint of unfair terms and con- sion as to the specification of currency exchange tising brochure in the form of supplements to ditions and seriously hinder the concept of rates for the purpose of loan settlement. various magazines. The brochure consisted of active protection by the consumers (by re- six pages, with the bottom part consisting of versing the burden of proof). The problem In light of the above, UOKiK recommended to, a cuttable order postcard. The postcard provid- indicated by the requesting court may, in the inter alia, present a position under which: ed information on consumer’s right to withdraw opinion of the Office, concern proceedings • contractual term which has become part of from the contract. In addition, the postcard also carried out in Poland in which the speed of the contract as a result of legislation changes, contained contact data of the entrepreneur as proceedings is prioritised by the legislator, is not an individually negotiated term; well as the website. The entrepreneur used e.g. in case of simplified proceedings. • a national court should take into account the the website to provide detailed information on knowledge the borrower had that could affect withdrawal from the contract and also released Proceedings C-51-17 Ilyés et Kiss the evaluation of the contractual conditions and a withdrawal form. Preliminary inquiries presented by a Hun- which, nevertheless, was communicated to the garian court concerned the issue of credits consumer or was communicated in a misleading This activity was challenged by the Central which tied the amount of debt with the cur- manner or the mistake resulted from conceal- Agency for Combating Unfair Competition (the rency exchange rate. Due to the significance ment; complainant in the national case before a Ger- of this problem from the viewpoint of Polish • the unfair nature of contractual provisions is man Court). According to the complainant, the consumers, UOKiK recommended Poland to also determined on the basis of other provisions brochure should contain information on any and be involved in this procedure. The prelimi- of the very contract as well as all the circum- all conditions, time limit, and procedures for ex- nary request aimed to determine: stances of its conclusion (including the abusive ercising the right to withdraw from the contract • whether a contractual term, which has be- nature of the conditions which were amended and contain a withdrawal form. come part of the contract as a consequence at a later stage as a result of intervention of the As a result, the German court asked the fol- of the intervention of the legislator, can be legislator). lowing questions: considered to be a clause which is not indi- 1. With regard to Art. 8 (4) of Directive 2011/83/ vidually negotiated and therefore does fall The remarks coincided with Poland’s position EU, for the issue whether a means of distance within the scope of Directive 93/13 due to presented in the proceedings. communication (in this case, an advertising individual arrangements; brochure with an order form) allows limited • whether the requirement for plain intel- Procedure C-430/17 Walbusch Walter Busch space or time to display the information, does ligible language referred to in Article 4(2) The questions asked by a German court con- it matter that: of Directive 93/13/EEC is also met if the ob- cerned the interpretation of Directive 2011/83/ a) a given means of distance communication (in ligation to provide information required by EU of the European Parliament and of the principle) allows limited space or time in line law has been fulfilled or is it also necessary Council of 25 October 2011 on consumer rights, with its nature, to communicate information concerning the amending Council Directive 93/13/EEC and Di- or is it rather that risk to the consumer of which the financial rective 1999/44/EC of the European Parliament b) a given means of distance communication, institution is aware or to which it might have and of the Council and repealing Council Direc- specifically due to the shape chosen by the en- access at the time the contract is concluded; tive 85/577/EEC and Directive 97/7/EC of the Eu- trepreneur, offers only limited space or time? • whether the examination of unfair con- ropean Parliament and of the Council (herein- 2. In the event of limited possibility of present- tractual term under which the consumer is after “Directive 2011/83/EC”) in terms of formal ing information within the meaning of Art. 8 subject to the currency risk (in this case, in requirements for distance contracts through (4) of Directive 2011/83/EU, is the limitation of the context of item 1 (i) and Annex to Direc- means of distance communication which allows information on the right to withdraw from the tive 93/13/EEC which, as an example of unlimited space or time to provide the information contract only to information on the right to with- fair contractual clause, reads: irrevocably to the consumer. drawal from the contract compliant with Art. binding the consumer to terms with which 8 (4) and Art. 6 (1)(h) of Directive 2011/83/EU? he had no real opportunity of becoming The preliminary questions asked by the Ger- 3. Is it always required, under Art. 8 (4) and Art. acquainted before the conclusion of the man court arose due to the following status 6 (1)(h) of Directive 2011/83/EU, also in the event contract) should also take into account the quo. A German entrepreneur on a national case of limited possibility of presenting information,

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to attach before the conclusion of a distance cation providing for limited space/time. ing on the temporal circumstances of invoking. contract the model withdrawal form contained The presented remarks were resembled in Po- UOKiK found that the issue may appear only in Annex I(B) of Directive 2011/83/EU to the land’s position presented in the proceedings. in the event of incidental control of template means of distance communication? agreements because it does not matter during UOKiK recommended to, inter alia, present Proceedings C-486/16 Bankia an abstract control whether the clause has legal a position under which: The proceedings concerned the enforcement of effects or whether the agreements concluded • an advertising brochure, as the one in ques- a mortgage loan based on an unfair term includ- with consumers contained the prohibited clause tion, has limited space to provide information. ed in a mortgage loan agreement providing for in the first place. The wording of a given clause Nevertheless, this limitation lies with the en- early payment in the event of a specific default in such a case is analysed in abstract terms, trepreneur. The entrepreneur makes decisions on regular instalments. In the status quo, which separately from a specific correlation with on the size of the brochure, distribution, and was a result of preliminary questions asked by a different agreement that has already been amount of information. Therefore, this is not a Spanish court, the basis was the mortgage concluded and performed, although taking into a limitation within the meaning of Art. 8 (4) of loan agreement concluded between a bank and account the measurements referred to in Art. Directive 2011/83/EU; a couple of consumers in 2006 in the form of 385 (2) of the Polish Civil Code. As for a specific • Art. 8 (4) is not only restricted to the require- notarial deed. In line with the condition imposed control, which took place in the status quo being ment for providing information about the right by the bank, a default on at least one of the in- the basis for preliminary questions, the abusive to withdraw from the contract, but also points stalments would allow the bank to immediately nature of the clause “is manifested” within the to (h): where the presentation of information is call for early repayment. As early as in the year term of a specific agreement, and the question limited within the meaning of Art. 8 (4) of Direc- in which the loan agreement was concluded, the arises whether the evaluation of the charged tive 2011/83/EU, the entrepreneur is obliged to borrowers, upon bank’s consent, distributed the based on the impugned clause is affected by the present all the information referred to in item loan repayment schedule into two tranches, time of such evaluation. (h). The purpose of this provision is to guarantee which lead to a situation where the loan was that consumers are provided with mandatory in- repaid in two ways, based on two schedules, but In conclusions, UOKiK found that the ruling of formation. Providing selective information only still under the one and only agreement contain- the Tribunal concerning the matter may have on the right to withdraw from the contract, with- ing a clause that the bank is entitled to call for a significant impact on the interpretation of pro- out information on the conditions, time limit, early repayment in the event of even the small- visions concerning prohibited contract terms and procedures for exercising this right, does est default on regular instalments. and the judicature of Polish courts, which is why not meet the conditions of consumer right to the Office considered it necessary to present information; The national court had doubts as to the results its remarks in writing. These remarks were, • consumers, apart from the information on of the prejudicial recognition of the prohibited however, not communicated to the Tribunal. The the right to withdraw from the contract, should nature of a given clause on other matters con- case is pending, and there was still no judge- also receive a model withdrawal form. Accord- cerning that contract, the same parties to the ment passed as at the end of 2017. ing to Art. 6(1)(h) of Directive 2011/83/EU, before agreement, the same clause, but other temporal a consumer is bound with a distance contract circumstances of invoking, which may reduce or off-premises contract, or any other offer in or repeal its abusive nature. The court asked this regard, the trader should give the con- whether such interpretation is compliant with sumer clear and comprehensible information the principle of effectiveness as defined in Art. as well as the model withdrawal form set out in 7 (1) of Directive 93/13/EEC on unfair terms in Annex I(B). In connection with the fact that Art. consumer contracts. 8 (4) of Directive 2011/83/EU does not limit the information to be provided by the trader to the By analysing the case whether it is justifiable to consumer to the sole information on consum- join the Government of the Republic of Poland er’s right to withdraw from the contract and re- to the proceedings, UOKiK analysed whether fers to, Art. 6(1)(h), it is assumed that the trader the very same clause in the very same agree- should also provide the model withdrawal form ment binding on the very same parties could in case they use a means of distance communi- be considered abusive or prohibited, depend-

74 3.2 Social surveys and market analyses In 2017, UOKiK instigated

Market studies comprise an important element of UOKiK’s activity.94 For the Office, these are sources of information the nature of a given sector, in particular the level of competition and concentration. Markets are new market study most often monitored where there is a greater likelihood proceedings of practices threatening the development of competition.

Market studies and analyses A study of agricultural and food out the purchase value threshold) products market amounted to over 23 thousand. As for The studies are conducted in the The study was conducted in 2017 in the surveyed (largest) agricultural form of surveys addressed to entre- connection with the entry into force and food product manufacturers, preneurs operating in a given sector, of the Act on Counteracting the Un- in 2016 there were slightly over 31 they can be national or local. The fair Use of Contractual Advantage thousand suppliers which provided information obtained is also used in Trade in Agricultural and Food their products valued at over PLN 50 in cases concerning infringements Products. The purpose of the activities thousand. In total, chain stores and of competition laws. Market studies was to estimate the potential number agricultural and food product manu- are also used to analyse economical of complaints to entrepreneurs’ ac- facturers had 48 thousand suppliers phenomina which affect consumer in- tivities that could be filed with UOKiK whose purchase value exceeded PLN terests. In 2017, UOKiK instigated once the new regulations. As a result, 50 thousand. It should be emphasised, 7 new market study proceedings. it was necessary to determine the however, that the numbers resulted 4 proceedings were terminated, one of number of chain store suppliers and of from the adopted data aggregation them in 2017 concerned agricultural agricultural and food products man- method, i.e. adding the number of and food products market. ufacturers. The study also aimed at suppliers of all the entities subject to obtaining information outlining the or- examination. This means that a given Separate studies were conducted in ganisation of the acquisition process supplier in that number could be the context of proceedings in concen- for agricultural and food products by counted more than once due to the tration cases. They served the purpose chain stores and the manufacturers fact that the supplier in question proof a direct analysis of the impact of of those products. vides its products to a number of re- planned concentrations on the market. cipients. According to the data obtained from Also in case of consumer, certain ex- the largest chain stores, in 2016 these Social surveys planatory proceedings are in the form stores held over 17 thousand suppli- of market study (monitoring). More- ers which provided agricultural and Social surveys commissioned by over, UOKiK carries out various ana- food products valued at over PLN 50 UOKiK concern are a source of intel- lyses to assess e.g. the harmfulness thousand (this is the statutory amount ligence on the level of knowledge of of action conducted by entrepreneurs which calls for UOKiK’s intervention). 94. UOKiK may conduct and apply corresponding solutions In the years 2015-2016, the total num- investigations as a market through its decisions. ber of all chain store suppliers (with- study.

75 3.1 3.2 3.3 3.4 Legislative work Social surveys Information International cooperation and market analyses and educational activities

selected legal issues, consumer atti- 3.3 tudes, and the level of confidence and Information and educational activities security of consumers in particular markets. Their results are important for information and educational actions and to facilitate cooperation with stakeholders. In 2017, UOKiK Information and educational activities conducted conducted 2 social surveys. by UOKiK revolve around legal and economic issues. Awareness of amicable dispute Education projects, events, and competitions are resolution in consumer cases (ADR) conducted every year. The Office is also involved A two-stage survey was carried out in connection with a campaign on in publishing activities. amicable dispute resolution (ADR) in consumer cases. The first stage was preceded by an information campaign (carried out as early as in The website www.uokik.gov.pl, in ad- The Office organised 2016), with the second stage being dition to news, offers information on conducted after its completion – in consumer warnings, notification from November 2017.95 The results of the entrepreneurs about unsafe products, surveys showed that social aware- map of fuel stations and warehouses ness of ADR increased moderately. with inspection results. It also con- In 2016, 31% of respondents (a rep- tains a consumer support browser. resentative sample) stated that they Moreover, UOKiK runs online plat- were aware of this solution, whereas forms dedicated to specific issues. this rate amounted to 38% after the campaign. The awareness of amica- The Office website also offers the free-of-charge trainings ble dispute resolution turned out to be Public Information Bulletin (BIP). In for the employees higher among persons who filed com- 2017, 1182 requests for public infor- of central and local plaints (41%). At the same time, the mation were submitted to UOKiK, respondents declared that they have which is nearly 67% more than in the government administration low knowledge in this regard. There- previous year. all across Poland fore, the campaign brought about an increase in the awareness of amica- Information and educational projects ble dispute resolution – it penetrated social awareness, but often only as “Knowledgeable Contracting Authority government administration all across a term. – Competition Law in Public Procure- Poland. The trainings were conducted ment Tenders” in September, October and November In 2017, UOKiK carried out the project and they were participated by 1362 95. The survey was car- aged 15-55 years. Also, “Knowledgeable Contracting Author- people. ried out by Research In- additional interviews were stitute ARC Rynek i Opinia conducted with persons ity – Competition Law in Public Pro- on the order of UOKiK in who filed a complaint curement Tenders” financed by the The project gave rise to a new November 2017. The sur- during the last 24 months, vey was carried out by the N = 506 people, 283 of European Social Fund (Operational e-learning platform www.szkolenia- CAWI (Computer Assisted which are included in the Programme Knowledge Education zmowy.uokik.gov.pl devoted to tender Web Interview) method main sample. 96 using the agency's own 96. The project is valued Development 2014-2020). The Office collusion – methods of their discovery panel at epanel.pl. The at PLN 679,689, with the organised 32 free-of-charge trainings and counteracting. In 2017, nearly one representative sample EU contribution amount- comprised N = 1000 Poles ing to PLN 572,841.89. for the employees of central and local thousand people created an account

76 the title of Amicus Consumentium to Examples of initiatives those entrepreneurs who promoted RESOLVE A DISPUTE: in cooperation with other the idea of amicable dispute resolu- FAST institutions in 2017 tion. The prize-winners of the compe- EASILY tition were three enterprises from the WITHOUT The 8th edition of the campaign: “Things Zachodniopomorskie Province. BUREAUCRACY to remember before holidays”. On UOKiK’s initiative, 40 institutions re- Workshops – Economy in the minded consumers about their rights competition law during summer holidays. UOKiK, in cooperation with Compass Lexecon and the Competition Law As- UOKiK (including the Branch Office in sociation, organised in 2017 a series Łódź), in cooperation with the Arch- of workshops on economy in the com- diocese of Łódź, warned seniors against petition law. The invitations were sent unfair practices applied by entrepre- to judges, lawyers, entrepreneurs, neurs. Posters about the threats were and academics. Three meetings were on the platform. Online trainings will displayed in several hundred churches. held: in February, April, and October. be available until June 2020. UOKiK, the Office, and the Financial Om- The first workshop was devoted to an Campaign “Make friends with budsman engaged in a joint initiative to economic approach in cases pertain- arbitration!” warn consumers against investing in ing to the competition law. The second In connection with the entry into force Forex. Moreover, the Office warned one dealt with private enforcement di- of the Act on Out-of-Court Consumer against investments which can take the rective and the possibility of pursuing Dispute Resolution on 10 January 2017, form of pyramid schemes. claims due to violation of the compe- the Office conducted an online social tition law as economy methods used campaign. It comprised spots encour- “Safe Playrooms”. UOKiK, the Trade in estimating losses resulting from aging to visit www.polubowne.uokik. Inspection Authority, and the Ombuds- the infringement of competition. The gov.pl. The website contains a browser man for Children have jointly prepared third event revolved around legal is- of institutions authorised to resolve recommendations for parents and en- sues with regard to counteracting the disputes, infographics with course of trepreneurs on how to ensure the safety unfair use of contractual advantage action, FAQ, and a flyer. The campaign of children. in the trade in agricultural and food was conducted from 18 September to products. 18 October 2017 under the motto “Make friends with arbitration!”. There were Information meeting – contractual nearly 67 thousand unique visits on the of World Consumer Rights Day. The advantage website in 2017. event was addressed to the elderly In July 2017, the Act on Counteract- who are a particularly vulnerable ing the Unfair Use of Contractual Ad- Events and Competitions consumer group. The participants vantage in Trade in Agricultural and discussed unfair practices as well as Food Products entered into force. As The conference “Consumer Pro- efficient solutions for the protection a result, UOKiK held an information tection in the Age of a Rising Silver of the elderly. meeting for entrepreneurs to outline Economy” new legal instruments and compe- On 10 March 2017, UOKiK, in coop- The World Consumer Day was also tence of the Office. The workshop eration with the Senate Team for an opportunity to award consumer- was participated by representatives Consumer Protection and the Car- -friendly entrepreneurs. UOKiK and of the organisations involved in social dinal Stefan Wyszyński University, the Senate Team for Consumer Pro- consultations regarding the act. The held a conference on the occasion tection have awarded for the first time course of the meeting was transmit-

77 3.1 3.2 3.3 3.4 Legislative work Social surveys Information International cooperation and market analyses and educational activities

ted online, with the recording being ises contests for the best MA thesis in UOKiK activities in numbers – 2017 available on the UOKiK website. competition protection and consumer protection, respectively. Since 2015, Workshops for entrepreneurs the Office also carries out a contest for – market surveillance the best PhD thesis which takes place In June, UOKiK organised a training for every 3 years. Any person graduated 1182 entrepreneurs dealing with trade in in Law and other domains, including requests for BIP response (1173 considered positively) electronics. The meeting was devoted economy, administration, and manage- to market surveillance in this area as ment, is allowed to take part in the well as changes in the law. By contrast, contest. In 2017, UOKiK awarded 6 MA the workshop in September was devot- theses, and distinguished 6 MA theses. ed to entities dealing with clothing, 3 32 furniture, toy, home appliance, and Wielkopolska Consumer Knowledge new, thematic on-site trainings news websites in tender electronic industries. The subject of Olympiad (87,420 unique collusion discussions pertains to regulations 2017 was marked by the 12th edition of visits in total) (1362 people concerning market control and sur- the Elżbieta Połczyńska Wielkopolska trained) veillance as well as the irregularities Consumer Knowledge Olympiad. The in selected areas. In November, there event was organised by the Branch was a training devoted to the EU law Office of UOKiK in Poznań in coopera- regarding the limitation of certain tion with the local governments of the Moreover, the Office prepared and hazardous substances in electric and Wielkopolskie Province, Wielkopolskie release the flyer “Consumer Aid” electronic equipment (“RoHS”). Branches of the Consumer Federa- which provides information on how tion, Wielkopolskie Province Trade consumers are able to exercise their Workshop: “State aid – recent legal Inspector, District and Municipal Con- rights and where they can seek help. condition and issues pertaining to sumer Ombudsmen, and the Districts Another one is a flyer called “Unfair the subject” of the Wielkopolskie Province. The Contractual Clauses”, which was The November workshop was particip- event was held under the patronage printed by UOKiK in 2017. ated by over 150 experts from central of the President of UOKiK and Mar- and regional institutions, mainly in- shal of the Wielkopolskie Province. In connection with the promotion of le- volved in protection of the environment Over 500 students of upper second- niency and leniency plus programmes, and energy. It provided for the transfer ary schools from 16 districts of the the Office issued an electronic version of information on the new regulations Province competed for the prizes. of the publication “Explanations of the as well as the networking of various in- President of the Office of Competition stitutions involved in providing state aid. Publishing activities and Consumer Protection on the Le- niency Programme. The manner of Trainings for Trade Inspection As part of information and educational submitting and handling applications Authority Officers activities, UOKiK prepares, publishes, for waiver from or reduction of fine – The main purpose of the meetings and distributes publishing items. leniency applications”. with inspectors organised by the Of- fice is to ensure the unification of in- In 2017, the Office paid particular All publications are posted at www. spection practices. In 2017, some of attention to educating consumers uokik.gov.pl, which also provides an the inspections concerned non-food and entrepreneurs in out-of-court electronic version and allows to order products, LPG, and liquid fuels as well consumer dispute resolution. Under a free-of-charge delivery of the docu- as issues pertaining to the energy law. the campaign “Make friends with ar- ment in paper form. bitration!”, the Office prepared and Contest for the best MA thesis printed a publication devoted to this Since 2008 and 2011, UOKiK organ- subject.

78 Online platforms Over half of the messages in 2017 UOKiK for the media concerned consumer protection, with In April 2017, the Office started an every third pertaining to the control information anti-trust law website of concentration. UOKiK is also active www.konkurencja.uokik.gov.pl. The on Twitter. website comprises major issues re- 187 337 lated to the activities undertaken In 2017, the cooperation with Polskie press releases tweets (955 thousand views) by UOKiK to counteract competi- Radio 24 was continued as part of tion-restricting practices, including weekly auditions – Consumer Alert. leniency programme and protection of whistleblowers. In 2017, there Moreover, in 2017 the information were over 14,400 unique visits on campaign for the prices of water at the website. airports enjoyed a considerable in- 3 terest from the media. The Office press The website www.przewagakontrak- used press releases and its Twitter conferences towa.uokik.gov.pl was launched in account to provide information about June 2017. It pertains to counteracting its request sent to Polish airports the unfair use of contractual advan- concerning the high prices of wa- The media about UOKiK tage in trade in agricultural and food ter in the duty-free zone. Thanks to products. It explains how UOKiK coun- the UOKiK campaign, there are now teracts such unfair trade practices free-of-charge drinking water in- in the form of questions, answers, and takes offered at the Chopin Airport in infographics. It also contains a re- Warsaw. Another issue which is often 4068 cording an information meeting with raised by the media concerns UOKiK press articles entrepreneurs. In 2017, there were information activities with regard to 6,400 unique visits on the website. increases in butter prices. UOKiK regularly notified the media about explan- The Office updates www.finanse. atory proceedings on this matter. uokik.gov.pl, a website maintained 32 732 since 2015, which offers compre- online publications hensive information on the situation on the market of mortgage loans denominated in Swiss franc and the unit-linked insurance market. The website contains information on activities performed by UOKiK 3248 – proceedings, decisions, reasoned radio and TV materials opinions, and judicial decisions. In 2017, there were 88,650 unique visits on the website. Cooperation with the media 3491 mentions about UOKiK on Twitter UOKiK regularly provides information on its activities as part of regular press releases sent to the media and published on the Office website.

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3.4 International cooperation

An important aspect of UOKiK’s activities is Consumer Financial cooperation with other national authorities and Programme Committee (CFPC) The European Commission sets an- international organisations involved in competition nual plans for the implementation of and consumer protection both in the horizontal consumer policies as part of Multian- nual Consumer Programme for the perspective and within the narrower market sectors. years 2014-2020.97 These plans are subject to opinions at the Consumer Financial Programme Committee. As a Member State of the European were: consumer complaint database, This is an advisory committee com- Union, Poland participates in the EU survey for co-sharing economy, and posed of representatives from all EU decision-making process and works labour organisation within the net- Member States. In 2017, UOKiK rep- closely with other Member States work. The CPN meeting was for the resentatives took part in a committee and the institutions of the European first time combined with Consumer meeting devoted to the implementa- Union. UOKiK is actively involved in Markets Expert Group which dis- tion of the plan from 2017. The ses- working groups, e.g. by creating EU cussed, inter alia, Consumer Condi- sion also allowed to summarise and legal norms. tions Scoreboard as well as studies evaluate the financial programme conducted by the EC. from the years 2007-2013 as well as 3.4.1 mid-term evaluation of the current European Competition Day programme. Cooperation for UOKiK representatives took part in consumer protection conference of the European Consum- Meeting of the representatives of er Days organised by the Presidency ODR contact points and European of Malta and Estonia at the Council of Consumer Centres Consumer Policy Network – CPN the European Union. The meeting on UOKiK’s representatives took part in CPN meetings, organised by the EC Malta, whose leitmotif was a Digital the meeting of representatives of the twice a year, provide a platform for Single Market Strategy, focused on ODR contact (Online Dispute Resolu- EU consumer protection authorities issues related to consumer protection) points and the European Con- to exchange experiences on the most tion in electronic communication, sumer Centres (ECCs). up-to-date horizontal issues regard- sharing economy, the regulation on ing consumer protection, both at na- geo-blocking on fintech market, and The meetings of the ODR contact tional and EU level. smart mobility. The event organised points organised by the European by Estonia pertained to changes oc- Commission serve an exchange of ex- The meetings organised in 2017, which curred in competition and consumer perience on the efficiency of the ODR were participated by a UOKiK repre- protection in the last years and mainly system in EU Member States. During sentative, were devoted to current EU related to the so-called Third Wave of the meeting in 2017, the experience initiatives, i.e. the new CPC regulation, the Internet as well as rapidly growing draft regulation on e-privacy, revision digital economy, new business mod- 97. Regulation of the Eu- consumer programme ropean Parliament and of for the years 2014-2020 of the consumer law, and Clean Energy els, and a new consumer type. the Council of 26 February and repealing Decision No for All Europeans. Major subjects 2014 on a multiannual 1926/2006/EC.

80 of specific countries concerning the devoted to challenges in the enforce- consumers, and a wider use of a be- ODR system were presented, including ment of competition protection law in havioural approach to protecting vul- communication with its users. The EC a digital world (with particular focus nerable market participants. informed about scheduled information on a growing importance of matters campaigns – for entrepreneurs and pertaining to entrepreneurs’ inter- International cooperation in market consumers, and presented initial sta- ference in consumer privacy and an surveillance and product safety tistical data on the functioning of the increasing role of marketing in the UOKiK took part in meetings of the platform since its start-up. social media) as well as the need Working Group dealing with “Market for improving cooperation with the Surveillance Action for Tyres 2015” The meeting of the Heads of ECCs was counterparties of entrepreneurs that (MSTyr15) coordinated by PROSAFE. devoted to exchange national experi- resort to violations or other entities The programme was participated by ence. The EC presented a new edition which (unintentionally) may facilitate market surveillance authorities from of ECC-NET – IT Tool and outlined pri- such violations (social media, payment 15 Member States of the European ority areas in consumer law: REFIT service providers). One of the subject Union and Turkey. One of the under- Fitness Check, collective redress, the comprised making joint action as part lying assumptions was to exchange European Small Claims Procedure. of the network and the need for bet- information between market sur- ter cooperation between institutions veillance authorities with regard to International Consumer Protection in charge of consumer protection and inspection of labelling, inspection and Enforcement Network (ICPEN) personal data protection. of technical documentation, and lab ICPEN is an organisation that brings tests. together consumer protection au- The Office also took part in the annual thorities from over 60 countries. The ICPEN Internet Sweep, with the 2017 The meeting between the customs mission of the Network is to exchange edition being devoted to the Terms and authorities of the Baltic states and information on cross-border market Conditions in the Digital Economy. Out market surveillance authorities in practices that may have a negative of 87 websites subject to examination, Riga aimed at discussing a common impact on consumer interests, and to 13 websites featured irregularities inspection project aimed at prevent- promote cooperation between the au- concerning, inter alia, an automatic ing any goods non-compliant with thorities responsible for implementing subscription prolongation, non-re- the applicable regulations or posing consumer legislation. turnable fees following contract ter- a threat to users from entering the mination or excessively long terms EU market. Scheduled to be imple- In 2017, the President of UOKiK took and conditions which are not under- mented in 2018, the project is sup- part in a High Level Meeting organised standable for an average consumer. posed to cover six product groups, by German Presidency of ICPEN. The e.g. electrical equipment and gas fuel event was devoted to strengthening OECD Consumer Policy Committee burning devices. the cooperation between various or- UOKiK monitors the work of the OECD ganisations, in particular how to con- Consumer Policy Committee, which In 2017, the international Joint Ac- duct joint activities as part pf ICPEN brings together representatives of tion 2014 was concluded, which was and regulations in a digital world. consumer protection authorities in the largest trans-border project in Moreover, the discussions focused on Member States, experts from social market surveillance coordinated by the course of action of the network for organisations, and entrepreneurs. In PROSAFE (a non-profit organisation). the years to follow and a new version 2017, the Committee's work focused As part of the project, the safety of of the ICPEN website. on issues of electronic commerce, pyrotechnic articles and electrotools consumer protection in the online (angle grinders) were examined and UOKiK representatives were also in- platform environment, challenges in inspected. In addition, the EEPLI- volved in workshops and conferences the safety of products related to the ANT 2014 project (Energy Efficiency organised by the ICPEN Presidency development of the Internet of Things, Complaint Products 2014) has been of Germany and Turkey which were the security and protection of data on implemented. The project consisted

81 3.1 3.2 3.3 3.4 Legislative work Social surveys Information International cooperation and market analyses and educational activities

in a laboratory examination of light ropean Commission. In 2017, the Of- counselling provided by VDE is cru- sources offered on the Polish market. fice hosted the representatives from cial. The meeting was an opportunity Moreover, the Office proceeded with Malta, Bulgaria, and Germany. UOKiK to exchange experience and discuss the international project Joint Action representatives were able to familiar- possible cooperation with the VDE 2015 which pertains to inspections ise themselves with the duties of their chemical labs as well as purposeful and laboratory examination of plas- counterparts from France, Portugal, aging of products, double quality of tic toys (with a verification of chemical Bulgaria, Croatia, and Malta. products, and smart home technol- properties – the presence of prohibit- ogies, with particular focus on the ed chemical substances) and initiated In 2017, the President of UOKiK visited safety of devices remotely controlled another international project Joint Ac- the VDE Testing and Certification In- via mobile applications or that can tion 2016 which will aim at inspection stitute – Association of Electronics be automatically (without user being and laboratory testing of the safety of Technicians, Electronic Engineers, aware of the fact) connected via WiFi hair treatment devices, electronic and IT Specialists seated in Offenbach. to various databases, servers, etc. toys, and percussion drills. The Office proceeds with cooperation and provide data. VDE shared its ex- with VDE, which was initiated in 2005 perience as regards disassembly of UOKiK was involved in the Exchange by the Chief Trade Inspection Author- samples and lab equipment used for of Officials Programme in the area ity Inspectorate. Due to the fact that designating prohibited substances. of market surveillance and safety of UOKiK does not have a laboratory for non-food products financed by the Eu- testing electric products, professional

82 3.4.2 group is summarised and approved bers that were used in anti-trust pro- Cooperation for during at the High Level Forum, which ceedings. competition protection is participated by UOKiK representatives. These are political meetings European Competition Authorities organised by the European Commis- – ECA Council of the European Union sion with senior representatives of the The management of UOKiK parti- In 2017, a UOKiK representative took Member States. They are informative cipates in annual meetings of Heads of part in the Working Party on Compet- and consultative in the scope of im- the European anti-trust authorities. At ition (G.12). The discussions focused plementation of the reform and its these meetings, representatives of in- on draft directive of the European Par- subsequent stages. dividual competition authorities pres- liament and of the Council to empower ent, among others, the latest results the competition authorities of the European Competition Network – ECN of their work. In 2017, the meeting was Member States to be more effective In 2017, a UOKiK representative took held in Berlin. The participants talked enforcers and to ensure the proper part in the Cooperation Issues and about the significance of consumer functioning of the internal market Due Process Working Group. The interests in the course of pending (ECN+). purpose of the meetings was to pres- anti-trust proceedings as well as the ent the progress in ECN+ directive. enforcement of the competition law in They also took part in the Transpar- The participants also discussed pro- the agricultural and food industry as ency Steering Group. The group pre- cedures for cooperation between an- part of the food supply chain. pares EC guidelines for data registra- ti-trust authorities and the European tion in the TAM system. The purpose is Commission. Moreover, the Office Organisation for Economic to help Member States comply with the Management took part in the annual Cooperation and Development obligation to publish on one website DGs meetings, which aim to develop – OECD relevant information on the highest a coherent and effective European UOKiK representatives took part in an aid granted in terms of volume. Within competition policy. The main subjects OECD meeting in Paris – Global Forum the course of work, the participants involved: the progress in a directive on Competition and a meeting of the suggest changes in system features aimed at increasing the competence Working Group Cooperation and En- and user management. All elements of of anti-trust authorities in the EU, forcement that aimed at discussing the report were also discussed at the mutual relations between investiga- efficient procedures for detection of meetings. As it is not required by law tory powers and the right to privacy, cartels. to accede to the TAM system, Poland implementation of Directive 2014/104/ (as at this date) does not belong to the EU of the European Parliament and of International Competition Network system. UOKiK administrates the na- the Council on certain rules governing – ICN tional website for Electronic State Aid actions for damages under national The network is a platform for co- Information System (SUDOP). law for infringements of the compet- operation and exchange of experi- ition law provisions, enforcement of ence of more than 130 competition UOKiK also took part in the Member the EU prohibition of making any il- authorities from around the world. States’ Working Group on Implemen- licit arrangements in the agricultural Representatives of the Office took tation of State Aid Modernisation. It and food sector (Art. 101 of the TFEU). part in an annual ICN meeting held in is a regular platform for exchanging Portugal. In 2017, the Office received information and experience on the im- Another important tool which enables the World Bank and International plementation of the reform, including the flow of knowledge and experience Competition Network award for the monitoring of support in particular within the ECN consists in informal in- best information and educational countries as well as state aid provi- quiries that may be sent by anti-trust project in the field of protection of sions in European Funds. 3 meetings authorities. In 2017, UOKiK prepared competition in the Implementing ad- were held in 2017. One of them was responses to 41 inquiries. The Office vocacy strategies at multiple levels. hosted by Poland. The work of the itself issued 5 inquiries to ECN mem-

83 3.1 3.2 3.3 3.4 Legislative work Social surveys Information International cooperation and market analyses and educational activities

The winning project was the UOKiK’s and carriers, as well as public broad- and the guarantee of competition publication on water and sanitation casters. protection. There were also remarks services market. about international obligations re- The President of UOKiK took part in garding such protection. The talks re- Other events the annual Baltic Competition Confer- volved around exchange of experience In March 2017, UOKiK hosted High ence. In 2017, the meeting was held between competition protection units Level meetings involving the Direc- in Vilnius. The participants discussed and priorities for further action. The torate General for Competition (so- the issue of the new ECN+ directive, President of UOKiK was also involved called Country visit). DG COMP del- cooperation between competition in a conference organised on the oc- egation, supervised by the Head of protection authorities, procurement casion of the 20th anniversary of the State Aid in the Directorate for Mar- and competition laws, market studies, competition protection authority in kets and cases I: Energy and Environ- and competition law in the sector of Turkey which dealt with the issue of ment, took part in meetings involving reception and management of muni- economy in the anti-trust law. More- 5 ministries, including the Ministry of cipal waste. Moreover, the President over, the President was also involved Finance and the Ministry of Develop- of UOKiK took part in the conference in a conference organised on the oc- ment. The meetings concerned state Competition Policy: Contemporary casion of the 25th anniversary of the aid subject to notification or pre-noti- Trends and Challenges organised by introduction of competition policies in fication to the European Commission an institution in charge of compet- this country. The participants talked and better cooperation in this regard. ition protection affairs in Georgia. about, inter alia, leniency programme, Major subjects concerned aid in the The subjects discussed at the con- state aid, and issues related to abuse energy industry, restructuring of the ference pertained to, inter alia, the of a dominant position. coal industry, aid granted to airports relationship between state aid

84 Postscript

In 2018, UOKiK will continue to focus on detecting the most grievous infringements of the competition law: cartels. For this end, the Office plans to conduct a number of searches, which constitute an efficient measure in obtaining evidence in secret arrangements that do not leave behind any direct evidence. Moreover, the Office will examine vertical agreements, including those covering the entire country.

Counteracting one of the most harm- may constitute evidence in cases In 2018, the Office intends to strengthen ful arrangements, i.e. tender collu- pertaining to practices that violate its cooperation with consumer rights sion, will be accompanied by infor- collective consumer interests. The advisers and community-based or- mation and educational initiatives, above shall enable the identification of ganisations as regards the manage- permanent monitoring of public any possible anti-consumer phenom- ment of consumer signals. Moreover, tenders, as well as a regular ana- ena on the markets on an on-going UOKiK shall promote the cooperation lysis of agreements. The protection basis, prompt intervention, and im- with customs and treasury authorities of markets against tender collusion, provement of the evidence standards. within the framework of the market i.e. discovering and preventing such surveillance and general product collusions from taking place – con- One of the Office's priorities will be the safety system. It shall also be import- tinues to be one of the top strategic effective enforcement of consumer ant to prepare the Trade Inspection to objectives of UOKiK. law in the financial services market, carry out tasks related to the control in particular as regards foreign cur- of solid fuels (coal). The Office also plans to develop rency loans, insurances issued by in- a whistleblower programme which surance capital funds, and alternative UOKiK plans in 2018 are inextric- allows to notify anonymously about investments. The fight against unfair ably linked to optimising processes practices restricting competition. Civil practices in direct selling market within the Office and increasing the sources of information are extremely (away from the business premises) efficiency of its activities. One of the valuable, what is more, the data ob- shall also remain an important issue. key aspects will be, therefore, the de- tained in such a way contribute to The Office's activities in this area shall velopment of an IT network, including detecting illegal activities in Poland. include: sovereign acts, legislative major work on the implementation of works, stimulation of self-regulatory an electronic system for document The plans of the Office of Competition processes, as well as information and management. and Consumer Protection for 2018 awareness-raising activities. UOKiK also include the practical application also plans to amend the Development of the mystery shopping method,98 Act, which shall increase further the which aims to obtain information which level of consumer protection. 98. Art. 6ia of the ACCP.

85 Organisational structure and division of responsibilities as at 31 December 2017

UOKiK

Vice Vice Director President President President General consumer competition protection protection

Executive Department of Department of Office of HR, Training, Office Consumer Interests Competition Protection and Organisational Affairs

Department of Department of Department of Office of Budget and Market Analyses Market Surveillance Concentration Control Administration

Department of Department of Legal Department Independent Position State Aid Monitoring Trade Inspection Protection of Classified Information Branch Offices Trade Inspection Authority

Laboratories

European Consumer Centre

Collaboration with consumer organisations and consumer ombudsmen

Office of Competition and Consumer Protection plac Powstańców Warszawy 1 00-950 Warszawa tel. +48 22 55 60 800 [email protected] www.uokik.gov.pl

ISBN 978-83-64681-11-0