The government’s bill amending the Competition and Consumer Protection Act was submitted to the Sejm on 31 January 2023. The proposed solutions are to extend the powers of the President of the Office of Competition and Consumer Protection (“President of UOKiK”). This act implements into the Polish legal framework the EU directive to empower the competition authorities of the Member States to be more effective enforcers of competition law (“ECN+ Directive”).
Key amendments proposed in the bill:
- Introduction of a statutory basis for the parent company’s liability for its subsidiary’s infringements of competition law. According to the bill, competition law is deemed to be infringed by the parent company if it “exercises a decisive influence” on the direct infringer. At the same time, a presumption of exercising a decisive influence has been introduced where the parent company’s share in the subsidiary’s capital exceeds 90%. Additionally, the management of the parent company will also be held liable for infringements of competition law (a fine of up to PLN 2 million for intentionally allowing an infringement of competition law to be committed).
- The President of UOKiK will be vested with the power to apply structural remedies (such as obligations to divide the undertaking or to divest some of its assets) in decisions closing antitrust proceedings.
- Extension of the President of UOKIK’s powers to request information and documents in the course of proceedings. Thus far, the President of UOKiK has been authorised to require that information be supplied by undertakings only – while the amending legislation extends this power so that the provision of information and documents may be required from a natural person as well.
- Practical extension of the limitation period for infringements of competition law. The current limitation period of five years will not change but the amending legislation stipulates that the actions taken by the President of UOKiK as part of an investigation (such as an inspection or a request for information) against one party to an agreement will lead to the suspension of the limitation period for all the parties thereto.
- Numerous changes concerning the inspection and search procedure, including the possibility of UOKiK’s inspectors conducting searches on private premises directly, with the consent of the court (before, such searches could only be performed by the police at UOKiK’s request). Additionally, the act provides for the possibility of lodging a complaint against the court’s decision to consent to a search (its acceptance means that the President of UOKiK will not be allowed to use the evidence gathered during a search).
- A change to the maximum fine for procedural infringements (e.g. for a failure to provide information required by the President of UOKiK or for hindering an inspection) – instead of the maximum fine expressed currently as an amount (EUR 50 million), the President of UOKiK will be able to impose a fine of up to 3% of the turnover generated by the undertaking.
- A considerable increase in the maximum fine imposed on associations of undertakings – according to the new legal provisions, a fine of up to 10% of the aggregate turnover of the association members may be imposed and these members will assume liability for its payment.
- Changes to the leniency procedure, including a clarification of the scope of “cooperation” with the President of UOKiK which the leniency applicant is obliged to undertake.
The bill will now be debated in the parliament. When the legislation process has ended, the law will enter into force 14 days after being signed by the President.