Recent Supreme Court judgment: It’s better to let UOKiK in…
The Polish Supreme Court has issued a precedent-setting judgment in which it addresses stalling and impediments in the course of raids and searches by the Office of Competition and Consumer Protection (UOKiK). The gist of this judgment is that the raid/search formally does not begin at the reception desk. In consequence, UOKiK may lawfully penalise lack of cooperation at an earlier stage, for example when the targeted company delays entry of the officials to its premises. In the specific case at the root of this judgment, however, T-Mobile saw its fine for stalling a search for more than an hour reduced to PLN 1.3 mln (from the original PLN 123 mln).
There is broad agreement within the legal community that any judgment concerning dawn raids by regulators is welcome in that it provides practical guidance. Data from UOKiK itself indicates that raids were executed in nine cases in 2018, and in five cases in 2019. Looking behind these figures, however, we find that a single case may, at the practical level, involve searches of a number of different companies – in the proceedings investigating alleged collusion by dealers of DAF trucks, for example, UOKiK staff visited no less than five enterprises. 12
The T-Mobile judgment now handed down by the Polish Supreme Court is precedent-setting in its own right. The Supreme Court has held that receptionists or security staffers are not competent to perform acts in law for purposes of art. 97 of the Civil Process Code. This means that, in the purely formal aspect, the raid / search does not commence when UOKiK identification is produced to such a person, but only when UOKiK ID is shown to a person expressly authorised to interact with UOKiK on the company’s behalf.
In practice, companies which rent space within large office buildings (and, consequently, which benefit from reception and security services additional to their own) could, conceivably, take steps to delay a search or to avoid it altogether, frustrating UOKiK’s efforts to collect evidence in antitrust proceedings. In the T-Mobile case, even though formal commencement of the search had been deferred, the Supreme Court held that UOKiK may penalise the company for lack of cooperation in the immediate lead-up to the search proper. “This is a very important verdict in that it defines exactly when we can talk about ‘commencement of the search’, and also exactly what kinds of conduct may incur a fine”, explains Bernadeta Kasztelan-Świetlik, partner in GESSEL, while cautioning that the Supreme Court yet has to publish written reasoning for the decision. (...)
The full text of this article (in Polish) is available on www.prawo.pl