On 12 May, 2015, Poland's Prime Minister Beata Szydło appointed Marek Niechciał for the position of the President of the Office of Competition and Consumer Protection (UOKiK).
Marek Niechciał is a graduate of the University of Warsaw, where he studied economics. In the years 2007-2008 he was President of UOKiK, and from 2008 an advisor at the National Bank of Poland’s Economic Institute. In the years 2007-2012 he was a member and Deputy Chairman of the Statistical Council, an advisory body to the Prime Minister.
On 1st January 2016 new fining guidelines of the Office of Competition and Consumer Protection (UOKiK) entered into force. The guidelines come in response to the introduction of personal liability of managers for competition law infringements and are meant to provide more information about UOKiK’s methods for calculation of fines.
The guidelines contain clarifications concerning the procedure for calculating fines imposed by UOKiK upon undertakings and their managers for having engaged in anticompetitive practices. The document outlines the type of infringements which will most likely result in fines, as well as the factors which are decisive in establishing the level of the fine (market and product specificity, effects and duration of the infringement). It also lists examples of attenuating and aggravating circumstances, which may be taken into consideration by UOKiK.
Most importantly, the guidelines address UOKiK’s new power to fine managers who intentionally permit their company to engage in an anti-competitive agreement. Financial liability for individuals was one of the most significant changes to the competition regulation introduced in 2015. Before managers who were personally responsible for infringing competition law were able to avoid punishment. Now they must consider the possibility of paying an administrative fine, which can be up to two million zlotys (EUR 500 000).
The publication of this document is part of UOKiK's communication policy, which is geared towards ensuring transparency of its activities and fair interaction with businesses. This document will enable undertakings and their managers to roughly estimate the fine they risk if they infringe competition law provisions. Although the guidelines are not legally binding for the authority, they nevertheless reflect UOKiK’s practice of enforcing the law and should therefore be understood as the authority’s commitment to consistent application of the rules set out in the document.
PGNiG, Poland’s leading gas supplier, fined for failing to fully comply with a commitment decision
The Office of Competition and Consumer Protection (UOKiK) has fined Polskie Górnictwo Naftowe i Gazownictwo (PGNiG), a leading Polish oil and gas company, EUR 2.45 mln for failing to comply with a part of the commitment decision it had accepted in December 2013. The commitment required PGNiG to remove from its contracts provisions preventing customers from reducing the amount of gas they had ordered.
PGNiG is a Warsaw Stock Exchange-listed company in which the Polish state owns a majority stake. In December 2013, Poland’s Office of Competition and Consumer Protection (UOKiK) issued a decision in which it accepted PGNiG’s commitment to remove questionable provisions from its gas contracts with business purchasers. One key provision objected to by UOKiK restricted customers from reducing the amount of fuel and the contractual capacity ordered for the next gas year. UOKiK’s decision also substantiated the charge that PGNiG had abused its dominant position on the market. The decision in this case was based on EU law as well as national law due to the fact that the practice affected trade between EU Member States.
Under the terms of the commitment, the provisions in question were to be amended by annexes to the original contracts or excised altogether. UOKiK's own monitoring of the commitment as well as feedback from the market, however, indicated that actual implementation of this commitment may be less than complete. In October 2014, UOKiK initiated review proceedings to determine whether PGNiG was duly meeting its obligations. These proceedings established that, while the old contractual provisions had indeed been removed, they had been replaced with new terms which, in practice, yield the same essential results. If customers were to accept PGNiG’s new conditions, they would be locked into purchasing a fixed minimal amount of gas established at a level defined in 2014 orders.
UOKiK fined PGNiG EUR 2.45 mln, breaking down into EUR 5,000 for each of the 490 days over which it delayed implementing its commitments. PGNiG has since announced its intent to appeal the fine before the Court of Competition and Consumer Protection.
The first Polish Competition Law Congress, co-hosted by Poland’s Office of Competition and Consumer Protection (UOKiK) and the Centre for Antitrust and Regulatory Studies (CARS), was held in Warsaw on 13-15 April 2015.
The event was organised to mark 25 years of competition law enforcement in Poland and was attended by officials from government agencies, current and former presidents and vice presidents of UOKiK, and representatives of academia and law firms. The aim was not only to summarise the achievements in the field of competition law over the past 25 years, but also to identify current and future challenges for antitrust legislation and competition enforcement in the years to come.
In her opening speech, the Prime Minister of Poland, Ms Ewa Kopacz, emphasised the key role UOKiK has played and continues to play (OK) in the creation of a social market economy focused on consumer welfare. The Prime Minister stressed that in an economy marked by aggressive competition, extensive efforts must be made to safeguard the interests of market participants and consumers.
The Congress consisted of six themed panels. The first panel on 13 April discussed the intersection of ‘competition’ and ‘public interest’ while also reflecting on how competition works in regulated markets. The following day, participants discussed procedural fairness and fundamental rights in antitrust proceedings. The speakers addressed the issue of striking the right balance between pursuing an effective fight against cartels while observing the right of all parties to a fair procedure. This was followed by a panel on the use of economic tools in antitrust and merger control proceedings. The next panel concluded the discussion by examining the application of negotiation tactics in competition law as well as the advantages and drawbacks of settlements and commitments. On the last day of the Congress, the speakers covered the topic of unfair competition practices.
All materials, including the agenda, the list of speakers, their presentations and the video footage of the conference are available in Polish on CARS’ website.
This publication is a compilation of contributions from national competition authorities of the European Union and the Competition Directorate General of the European Commission (“the Authorities”). Information provided in this publication is for information purposes only and does not constitute professional or legal advice. The content of this publication is not binding and does not refl ect the offi cial position of any Authority. Neither any Authority nor any person acting on its behalf is responsible for the use which might be made of information contained in this publication.