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Implementing a Competition Law System- Three Decades of Polish

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Implementing a Competition Law System- Three Decades of Polish Implementing a Competition Law System —Three Decades of Polish Experience Marek Martyniszyn and Maciej Bernatt* Abstract This report critically analyses the introduction and development of a system of competition law in Poland prior to 2016, a period when the country underwent two fundamental transitions: from a centrally planned economy to free markets and from communism to democracy. In particular, the study focuses on the competition agency’s setup, advocacy and enforcement efforts. It also examines the position and input of the judiciary, practitioners and the broader epistemic community. The study uniquely benefits from in-depth interviews with individuals who shaped the Polish system over nearly thirty years of its existence (inclusive of all former heads of the agency, judges, leading practitioners and agency advisors) and from analysis of newly gathered data and statistics. It also draws on broader scholarship on new competition regimes. The findings are aimed to inform refinements in Poland and other countries establishing or developing competition law systems. This study will be particularly salient in countries that are undergoing or have undergone similar economic and/or political transitions. * Marek Martyniszyn is a Senior Lecturer at Queen’s University Belfast. Maciej Bernatt is an Assistant Professor and Head of the Department of European Economic Law at the Faculty of Management of the University of Warsaw. Thanks to all interviewees and other persons and institutions who facilitated this work, and to Casey Aspin and Nina Łazarczyk for editing and research assistance. Earlier versions of this work were presented at the 2017 Workshop of the Competition Law Scholars Forum (Warsaw, Poland), the 2017 Annual Conference of the Academic Society for Competition Law (Stockholm, Sweden), the 2018 Annual Conference of the Socio-Legal Studies Association (Bristol, UK), the 2018 Annual Conference of the Society of Legal Scholars (London, UK), the 2018 Competition Law Forum at the University of Zagreb (Croatia), and the project’s closing seminar in Warsaw (Poland)—in November 2018. Shorter version of this report has been published in the Journal of Antitrust Enforcement and is available at <https://doi.org/10.1093/jaenfo/jnz016>. The usual disclaimers apply. The underlying research, conducted in the period 2017-2018, was funded by the Oxford Noble Foundation, within the framework of its Programme on Modern Poland, by means of a competitive grant award to Dr Marek Martyniszyn in July 2016. 1 Electronic copy available at: https://ssrn.com/abstract=3391298 Contents I. Introduction .................................................................................................................................... 2 II. Political and economic context of transition .................................................................................. 4 III. Pre-1989 developments .................................................................................................................. 6 IV. Competition system post-1990 ....................................................................................................... 8 A. The agency .................................................................................................................................. 9 1. Set-up and mandate................................................................................................................ 9 a) The agency’s head ............................................................................................................. 10 (1) Appointment and dismissal ...................................................................................... 10 (2) Political involvement ................................................................................................. 12 (3) Leadership tenure ..................................................................................................... 13 b) Agency resources .............................................................................................................. 15 (1) Staff ........................................................................................................................... 15 (2) Budget ....................................................................................................................... 20 c) Evolving mandate .............................................................................................................. 23 2. Competition advocacy .......................................................................................................... 25 3. Enforcement efforts .............................................................................................................. 30 a) Abuse of dominant position .............................................................................................. 32 b) Cartels and other agreements restricting competition .................................................... 35 c) Control of concentration ................................................................................................... 43 B. Judiciary .................................................................................................................................... 46 C. Competition law practitioners and broader epistemic community ......................................... 53 V. Conclusions ................................................................................................................................... 58 Annex I: Interviewees list ...................................................................................................................... 61 I. Introduction The spread of competition legislation internationally in the last three decades has been unprecedented. While initially associated with Western liberal democracies with market economies, competition legislation has now spread to more than 130 countries with a range of economic structures. The new competition law jurisdictions differ greatly with regard to the level of development, type of economy, available resources, and broader socio-political and cultural contexts. As a result, each faces unique challenges in implementing competition systems.1 This report critically analyses the introduction and development of a competition law system in Poland. The system took root as Poland shifted from a centrally planned to a free market economy; from communism to democracy; and from isolation to accession to the European Union (EU). This research, while relying on broader scholarship on new competition regimes and doctrinal research, also draws on under-explored data and statistics. Moreover, this analysis benefits from nearly 30 in- depth interviews conducted with individuals who shaped the system over nearly 30 years of its 1 For analysis of the phenomenon and the reasons behind it see Umut Aydin, 'The International Diffusion of Competition Laws' (APSA Annual Meeting Paper 2010), available at <https://papers.ssrn.com/abstract=1657456>; Eleanor M Fox, 'Antitrust in No One's World' (2012) 27(Fall) Antitrust 73. 2 Electronic copy available at: https://ssrn.com/abstract=3391298 existence, including all former heads of the competition agency, judges, leading practitioners, and agency advisors.2 Kovacic and Lopez-Galdos argue that establishment of a well-functioning competition law system is a slow process, requiring between 20 and 25 years before one can gauge its results.3 In this light the Polish regime is ripe for such a broad empirical evaluation, which was undertaken with a focus on some of the key factors determining effective implementation of competition law and policy, drawing on the work of Aydin and Büthe.4 The analysis begins with developments in the early 1980s, leading to the adoption of the first competition statute in 1987. It concludes at the end of 2016. It is the first such study of the Polish competition law system,5 or indeed of a recently matured competition law regime. The findings aim not only to inform refinements in Poland, but also to deepen our understanding of how new systems develop and to influence law and policy reforms in jurisdictions that are developing domestic competition systems. They will be particularly salient in countries that have undergone or are undergoing similar economic and/or political transitions. This report first outlines the broader political and economic context of Polish transition. It then provides an overview of early developments in competition law under the communist regime (pre- 1990). This leads to analysis of the competition system post-1990 divided into three sections that focus on the key co-producers of the system. The main section scrutinises the status and operation of the competition agency. In particular, it first critically examines the agency’s setup, its resources and evolving mandate, allowing further examination of the agency’s advocacy and enforcement efforts across the years. The main section is followed by sections focusing on the contributions and roles played by the judiciary, practitioners, and the broader epistemic competition law community. The conclusions bring together the key policy recommendations. 2 See Annex I: Interviewees list. The interviewees informed this project and served as sources, providing directly attributable comments and some observations on a not-for-attribution basis. In the case of attributable comments interviewees initials were used to identify them. Annex I provides a key to the initials’ listing. 3 William E
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