As of 17 September, the Office of Competition and Consumer Protection has access to treasury and bank secrets so as to facilitate assessment and imposition of penalties for violations  (many of which depend on the turnover achieved by the offending entity in the financial year preceding that in which the penalty is applied).

On authority of the legislative Act regarding competition and consumer protection from 4 July 2019, the President of the Office of Competition and Consumer Protection will now benefit from new powers, including access to treasury secrets and bank secrets for purposes of pending antitrust, consumer protection, and abuse of contracting advantage cases. Until now, Polish law afforded access to fiscal files only to the head of the Polish Financial Supervision Authority. These powers will leave UOKiK better placed to levy penalties.

Open door to fiscal secrets

The amount of a fine imposed by UOKiK is generally tied to the offending company’s turnover for the previous year. And thus, an entity engaging in practices which impede competition or violate consumer interests are liable to a fine of up to 10% of its turnover for the financial year preceding that in which the penalty is applied.

“Problems arise when the business enterprise does not accept correspondence from UOKIK, ignores our subpoenas or does not provide details of its turnover. In some instances, we have to verify the information presented to us, for example, with the tax authorities, and much of the data is subject to treasury secrecy”, explains Marek Niechciał, president of UOKiK, adding “the new rules may also be of assistance in determining whether the enterprise is commercially active at the moment, in collecting the penalty once imposed, and in cases concerning Ponzi schemes. In the latter case, documents obtained from the tax authorities may help us to establish whether financing of a disbursement to a consumer is dependent on contributions paid in by successive system participants”.

Now, the fiscal authorities may no longer refuse disclosure to UOKiK of information about the financial situation of a company subject to proceedings. These new rights afforded to the president of UOKiK have been criticised by employer organisations, including the Business Centre Club.  The BCC takes the position that information held by the tax authorities should not be released to UOKiK, and it argues that establishing the turnover of a company is relatively easy – what with incorporated entities required to file annual financial reports – and should not require access to secret data. The counterargument is that UOKiK may find itself conducting proceedings against a company which has not complied with this duty.

Bernadeta Kasztelan-Świetlik, partner in GESSEL and former vice president of UOKiK, meanwhile, takes the position that UOKiK must be effective in its actions and that, without access to information, it may find itself powerless against unscrupulous companies. (...)

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