Subsequent to Polish Constitutional Tribunal ruling, searches by UOKiK subject to greater scrutiny ??

The statutory provision enabling challenge of a Court of Competition and Consumer Protection decision authorising UOKiK to search a company’s premises is unconstitutional in that it amounts to complete depravation of the right to trial, the Constitutional Tribunal has ruled.

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Searches in competition law cases

Art. 105n.1 and 2 of the legislative Act of 16 February 2007 regarding competition and consumer protection vests the president of UOKiK, the Polish competition authority, with the power to order raids in search for evidence in clarificatory proceedings and antitrust proceedings, examining files and books, written communications and any and all documents and data carriers, devices, systems and other objects which may constitute evidence in the case, provided that there are reasonable grounds for believing that such evidence may be found on the premises searched. Any such raid requires prior permission of the Competition and Consumer Protection Court; upon receiving a request from UOKiK for such permission, the Court rules within 48 hours. The second sentence of art. 105n.4 of the Act (to which the present Constitutional Court decision refers) provides that this decision of the Competition and Consumer Protection Court cannot be challenged. The Constitutional Tribunal has now taken the position that, in practice, this deprives the business enterprise of an opportunity to defend its case.

“This decision is not being assessed in other proceedings, there is no possibility of verifying it”, Judge Piskorski emphasised. “In like spirit, it is not evaluated in the contest of any future antimonopoly proceedings – which, by the way, need not be commenced at all. Thus, it closes off the way to enforcing the rights and freedoms of the business enterprise infringed upon by such a decision, so their rights may be violated”, the judge explained. He also pointed out that the Competition and Consumer Protection Court reaches its decision during proceedings behind closed doors of which the enterprise is not notified, and the decision contains neither a reasoning nor an extract of the UOKiK request for clearance to conduct the raid; finally, the decision is not subsequently included in the case files.

“The impossibility of mounting a legal challenge concerns an instrument which interferes with freedom of commercial activity, privacy, and ownership. For these reasons, application of standards from the realm of criminal procedure is called for”, Judge Piskorski underlines.

Bernadeta Kasztelan-Świetlik, partner in GESSEL (and former Vice President of UOKiK), agrees. “Antitrust proceedings are regarded as quasi criminal in their nature. Accordingly, the right to defence must be duly accommodated, especially seeing as the potential penalties are quite high and may be imposed not only on the business enterprise but, in some cases, also on natural persons. If, indeed, there is a lacuna in the legislative Act regarding competition and consumer protection, a lacuna which may give rise to doubts, which may fall short of the requisite standard of the right to defence, this lacuna must be filled. Which is exactly what the Constitutional Tribunal is presently doing”, Bernadeta Kasztelan-Świetlik explains (…)

The full article (in Polish) is available at www.prawo.pl