Annual Report on Competition Policy Developments in Poland
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Organisation for Economic Co-operation and Development DAF/COMP/AR(2020)27 Unclassified English - Or. English 5 November 2020 Directorate for Financial and Enterprise Affairs COMPETITION COMMITTEE Annual Report on Competition Policy Developments in Poland -- 2019 -- 10-12 June 2019 This report is submitted by Poland to the Competition Committee FOR INFORMATION. JT03467986 This document, as well as any data and map included herein, are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area. 2 DAF/COMP/AR(2020)27 Table of Contents Poland ..................................................................................................................................................... 3 Executive Summary .............................................................................................................................. 3 1. Changes to competition laws and policies, proposed or adopted. ................................................. 3 1.1. Summary of the new legal provisions of competition law and related legislation ....................... 3 1.2. Other relevant measures, including new guidelines. ..................................................................... 3 1.3. Government proposals for new legislation. .................................................................................. 4 2. Enforcement of competition laws and policies ................................................................................ 4 2.1. Action against anticompetitive practices, including agreements and abuses of dominant positions ............................................................................................................................................... 5 2.2. Mergers and acquisitions ............................................................................................................ 11 3. The role of competition authorities in the formulation and implementation of other policies, e.g. regulatory reform, trade and industrial policies ......................................................... 14 4. Resources of competition authorities ............................................................................................. 14 4.1. Resources overall (current numbers and change over previous year): ....................................... 14 4.2. Human resources (person-years) applied to: ............................................................................... 15 4.3. Period covered by the above information: .................................................................................. 16 5. Summaries of or references to new reports and studies on competition policy issues: ............. 17 5.1. Waste market .............................................................................................................................. 17 5.2. The UOKiK for agriculture ........................................................................................................ 17 ANNUAL REPORT ON COMPETITION POLICY DEVELOPMENTS IN POLAND Unclassified DAF/COMP/AR(2020)27 3 Poland Executive Summary 1. Changes to competition laws and policies, proposed or adopted. 1.1. Summary of the new legal provisions of competition law and related legislation 1. In 2019, Polish Office of Competition and Consumer Protection (hereinafter referred to as “UOKiK”, “Office”) received new powers by changes in the Act on Competition and Consumer Protection (hereinafter referred to as “ACCP”). Due to changes in the ACCP, the key amendments were: Fiscal secrets access. The President of the UOKiK will be able to exercise the right as a part of proceedings within the scope of competition and consumer protection and unfair use of contractual advantage. This will make it easier for the President of the UOKiK to estimate and impose penalties for infringements. Their amount depends on the company’s turnover from the previous year. The new regulations may also be helpful in determining whether an entrepreneur is currently conducting business activity during the process of enforcing a penalty and in proceedings concerning so-called financial pyramid schemes. Extended powers. Extending the powers of the President of the UOKiK to access banking secrets. An analysis of data obtained from banks will help to determine whether there is a significant material disproportion between parties, for example a supplier of agricultural products and a processor or a shop. New penalties. In 2019, the UOKiK received new powers following changes in the ACCP. The amendment adjusts Polish law to the EU’s regulation on unjustified geo-blocking (Regulation 2018/302 of 28 February 2018 on addressing unjustified geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market). Based on the above, President of the Office is in a position to impose fines for violations of geo-blocking prohibition as well as has a right to intervene in two situations: firstly, in B2B relations, where the Office may initiate antitrust proceedings if it suspects that geo-blocking restricts competition and secondly, in B2C relations in case of infringement of collective consumer interests. Both in this case and in the case of infringement of collective consumer interests that the UOKiK may impose financial penalties of up to 10 per cent of the company’s previous year's turnover. 1.2. Other relevant measures, including new guidelines. 2. New measures connected with daily work of the UOKiK are aimed to provide close cooperation between state authorities (i.e. Polish Financial Supervision Authority).The Office will be able to share information obtained in the course of its investigations. This will make combating violations of the law committed by companies in the financial sector faster and more effective. ANNUAL REPORT ON COMPETITION POLICY DEVELOPMENTS IN POLAND Unclassified 4 DAF/COMP/AR(2020)27 3. Implementing changes within the Office, by empowering the President of the UOKiK to have greater flexibility in allocating tasks within the Office (the headquarters, branch offices and laboratories). 4. In order to clarify to the entrepreneurs all the issues associated with dawn-raids, in December 2019 the President of UOKiK issued new guidelines on conducting dawn-raids. Dawn raids may be conducted both at the premises of the entrepreneurs involved in the violation of competition rules, as well as the premises of market participants who are not party to an anticompetitive agreement, although may possess relevant evidence for the proceedings. 1.3. Government proposals for new legislation. 5. The Council of Ministers has adopted a bill amending the Act on the organisation of certain agricultural markets and the Act on Contractual Advantage (hereinafter referred to as “ACA”). The new regulations, inter alia, prohibit the sale of agricultural products below the reference price. This index will be published once a year and will apply to selected products. The UOKiK from now on can intervene where a large trader exploits its position with regard to smaller suppliers. On basis on the ACA, an entrepreneur from the agri-food industry that breaks the law will be fined up to 3 per cent of its turnover. The main purpose of the new regulations and the Office’s actions is to quickly improve the situation of weaker parties operating in the agri-food sector, e.g. farmers. It is also possible to oblige a company to change its practices, in order to improve the situation of its counterparties. Changes in regulations will also contribute to fair distribution of margins between producers, intermediaries and stores. 6. In April 2019, the Directive of the European Parliament and of the Council on unfair trading practices in business-to-business relationships in the agricultural and food supply chain (hereinafter referred to as “Directive”) was adopted. It will strengthen the position of suppliers which will be further reinforced. The list of unfair practices will be expanded. The Directive introduces a blacklist of practices which will be in all cases automatically prohibited in all agreements. This includes, but is not limited to, buyers cancelling the delivery of perishable products at a short notice, refusing to confirm the terms of the contract in writing, demanding payments not related to the sale of products or threatening to retaliate if the supplier exercises their statutory rights. Practices referred to as grey practices are also listed. They will not be automatically prohibited but cannot be used unless they have been agreed in advance and explicitly included in the contract. This includes, among other things, charging additional fees from suppliers for promotions, storage and new product launches. In addition, the list of goods covered by the Directive on contractual advantage may be extended to include products that are not intended for human consumption, such as feed, seeds and live animals. 2. Enforcement of competition laws and policies 7. In 2019, the total amount of all penalties imposed by decisions of the President of the UOKiK was: PLN 424,924,214.94. The total amount of competition-related penalties was: PLN 185,680,102.94. The amount of competition-related penalties constitutes 43.7 per cent of the total amount of all penalties imposed in 2019. Also the UOKiK initiated 56 proceedings to determine whether the case is antitrust, and 14 antitrust proceedings.