Competition and Consumer Protection Act – amendments

Upon elapse of 14 days from its publication in Monitor Polski, amendments to the legislative Act regarding competition and consumer protection will come into force. One of the effects will comprise implementation of Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market – or the ECN+ Directive for short.

The key changes will include:

An expanded catalogue of entities subject to penalties

Under the revamped rules, penalties for antitrust violations can now be imposed on a dominant company whose subsidiary has broken competition law – in other words, the corporate parent can be held to account for the infractions of its corporate child, as long as the former’s stake in the latter exceeds 90%.

Penalties

The toolbox placed at the disposal of the Polish Competition and Consumer Protection Authority (UOKiK) now includes:

1. a)  The power to order the breaking up of an enterprise, the divestment of all or some of the assets (including the controlling stake) or the transfer of some operations to other entities within the corporate group;
   b)  With respect to business associations, the power to impose a fine corresponding to 10% of the association members’ turnover in the market where the violation was committed;
   c) The power to impose a fine of up to 5% of the offending enterprise’s average daily turnover in the preceding year in order to enforce compliance with the UOKiK decision, e.g. in the event of failure to comply with duties formulated in the UOKiK decision or failure to desist in violations.

Professional privilege

If, in the course of a search, an enterprise declares that a specific document contains written communications between that enterprise and independent counsel with respect to the matter which the search concerns, the officials conducting the search shall leave such document in situ. If this declaration gives rise to doubts, the officials may take a cursory look at the document and then forward it to the Competition and Consumer Protection Court, applying for a ruling as to whether the document is in fact protected by professional privilege and refers to the pending case.

Term in office of the UOKiK president

To date, the head of the Polish Competition and Consumer Protection Authority could be dismissed at any moment by the prime minister, without a need to specify grounds. Now, the UOKiK president will be appointed for a five-year term in office, and his dismissal must be informed by one of the specific grounds specified in the statute. The same person may serve as UOKiK president for two terms in office.

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