Proceedings
In cases involving practices that unfairly exploit contractual advantage, the President of the Office of Competition and Consumer Protection (UOKiK) conducts two types of administrative proceedings: explanatory and proper proceedings. During the proceedings, UOKiK may carry out an inspection if it is a more effective tool for obtaining documents than a written request for their submission. The inspection may be carried out at the premises of the supplier or purchaser suspected of engaging in prohibited practices, as well as at other entities, e.g. the suspect's contractors.
Explanatory proceedings
Explanatory proceedings are initiated ex officio (rather than at the request of an entrepreneur). They are conducted in relation to a case, rather than against specific entities. The purpose of such proceedings is, among other things, to make a preliminary determination as to whether there has been a violation of the provisions of the Act justifying the initiation of proper proceedings, and to identify the potential group of entities affected by the practice.
The investigation should be completed within 4 months, and in particularly complex cases, within 5 months from the date of its initiation. In justified cases, this period may be extended.
Proper proceedings
Proper proceedings are initiated when it is reasonable to allege that a specific entity has engaged in practices that unfairly exploit its contractual advantage. That entity becomes a party to the proceedings.
It obtains the right to actively participate in the proceedings and to comment on the evidence gathered. It also has the right to inspect the case files. Any restrictions in this regard require the President of UOKiK to issue an appropriate decision, subject to judicial review.
The proceedings should be completed no later than 5 months from the date of their initiation, but in particularly complex cases, this period may be extended.
The decision of the President of UOKiK may be appealed to the Regional Court in Warsaw – the Court of Competition and Consumer Protection, within one month of its delivery. The appeal shall be lodged with the court through the President of UOKiK, who shall forward it together with the case files to the court.
UOKiK employees are obliged to protect trade secrets, other information protected under separate regulations, as well as other information obtained in connection with the performance of their official duties. It is irrelevant how the information was made available to the Office (e.g. provided by an entrepreneur in the form of a notification, at the request or demand of the Office, or in the course of an inspection).
However, it should be noted that the obligation to protect confidentiality does not apply to information that is:
- publicly available,
- about the initiation of proceedings,
- about the issuance of decisions concluding the proceedings and their findings.
Information that is publicly available is considered to be information for which the entrepreneur has not taken the necessary measures to maintain its confidentiality (this includes, for example, information published on the entrepreneur's website).
The law provides for two settlement solutions: voluntary submission to punishment and the issuance of a decision by the President of the Office of Competition and Consumer Protection (UOKiK) obliging the entrepreneur to take specific actions.
Voluntary submission to punishment
Both the party to the proceedings and the Office of Competition and Consumer Protection may propose voluntary submission to punishment.
In proceedings concerning practices that unfairly exploit contractual advantage, voluntary submission to punishment allows for a reduction of the financial penalty by up to 50% compared to the penalty that would have been imposed if the party had not participated in this procedure.
The voluntary submission to punishment procedure is used when it can help speed up the proceedings conducted by the President of UOKiK.
Commitment decision
At any stage of the proceedings, the entrepreneur may submit a proposal to the Office of Competition and Consumer Protection to take specific measures that will lead to the termination of the infringement or the removal of its negative effects.
In its decision, the President of UOKiK obliges the party to fulfil the commitments proposed by it and sets a deadline for their implementation. The content of the commitments is always the result of agreements between the authority and the party to the proceedings. The party may, for example, undertake to pay outstanding amounts, pay interest for late payment, shorten contractual payment terms, clarify previously unclear provisions of contracts, waive additional fees or provisions that are disadvantageous to the other party to the contract.
The main benefit for the entrepreneur is that the alleged practice is not found to have been used (only its plausibility is established) and no financial penalty is imposed.
The President of UOKiK may issue so-called soft interventions to entities in cases involving unfair practices exploiting contractual advantage.
A statement does not mean that administrative proceedings have been initiated, but that certain behaviour may constitute a practice unfairly exploiting contractual advantage. It is usually issued in cases of minor importance.
A soft request allows the addressee to change their practice and thus avoid proceedings, but also gives them the opportunity to present arguments justifying the practice, which in turn may lead the President of UOKiK to consider it legal.