Competition and consumer protection disputes

• Explanatory proceedings before Poland’s competition regulator, the Office of Competition and Consumer Protection (UOKiK). Commencement of explanatory proceedings by UOKiK is a signal that the regulator suspects irregularities on the market but does not yet have sufficient evidence to support specific allegations. It is very important for a company to have professional legal advice at this stage, which will determine the direction in which the competition proceedings evolve and the allegations that are ultimately asserted.
• Antitrust proceedings before UOKiK concerning anti-competitive arrangements or abuse of a dominant position. In antitrust proceedings, UOKiK files specific charges against businesses which it believes have violated competition law. The main task of the lawyer in the proceedings is to defend the client. This largely involves showing that the alleged practices did not occur or were not anti-competitive in nature.
• Representing clients in leniency and remedial proceedings, in which clients may mitigate or avoid sanctions in exchange for cooperating with UOKiK or undertaking to carry out specific remedial measures. In either case, the scope and manner of cooperation with the competition authority can determine whether the effort succeeds or fails.
• Merger review proceedings before UOKiK. M&A transactions by particularly strong players require approval of UOKiK. The regulator examines the transaction to insure that it will not lead to the creation of an entity with too much economic power which would enable it to abuse its dominant position. We represent our clients in proceedings seeking approval of concentrations or developing the optimal conditions under which the transaction may be carried out.
• Proceedings before UOKiK for protection of collective interests of consumers. These are now the most common proceedings before the Polish competition regulator. They usually involve provisions of contracts, terms and conditions and documents used by businesses in dealings with consumers. This area also includes allegations of unfair market practices, including misleading advertising. Since 2007 the potential penalty for violations of this type has been the same as for anti-competitive practices—up to 10% of the annual revenue of the business.
• Appeals from decisions by the competition authority. These cases are heard by the Court of Competition and Consumer Protection. For the most part they involve classic antitrust or consumer protection matters, but they may also involve appeals by telecommunications, energy and transportation companies against decisions by the president of the Office of Electronic Communications, the Energy Regulatory Office or the Office of Rail Transportation, as the case may be.
• Interlocutory appeals from orders of the competition authority. The most common example of proceedings of this type is an interlocutory appeal against an order by the competition authority granting or denying a request to seal the files in a case pending before UOKiK.
• Proceedings brought by UOKiK for violation of collective interests of consumers. The competition authority may apply to the Court of Competition and Consumer Protection for a finding that provisions of form contracts are prohibited. These cases are conducted under civil procedure rules.
• Commercial disputes seeking to impose civil liability for violations of competition law—also known as private enforcement actions. Such disputes have grown in importance in recent years, but are still relatively rare in Poland. A classic example would be a claim by a company that has overpaid as a result of price-fixing. The plaintiff in such a case is suing a supplier for disgorgement of unlawful gains equal to the difference between the inflated price paid by the customer and the market price it would have paid were it not for the defendant’s participation in anti-competitive arrangements.

Contact:

Paweł Ciećwierz, pawel.ciecwierz@wardynski.com.pl

Tel.: +48 22 437 82 00, +48 22 537 82 00