• Specification of the investigative powers of the Office, increase of the independence of the antitrust authority, the term of office of President of UOKiK, as well as new solutions concerning the leniency programme.
• These are only some amendments to the Competition and Consumer Protection Act which entered into force on 20 May.
• Adoption of the aforementioned solutions is linked to the implementation of the EU’s ECN+ directive.

The implementation of the Competition and Consumer Protection Act is related to the implementation of Directive 2019/1 of the European Parliament and of the Council of 11 December 2018. (ECN+ Directive). Its aim is to give competition-protecting authorities of Member States some additional powers to enforce the law more effectively and to ensure proper functioning of the internal market.

The new rules standardise the competences of national competition authorities and equip them with procedural instruments to effectively detect infringements of antitrust law, both at the European level and on national markets.

- Some of the assumptions of the ECN+ Directive have already been present in Polish law, but some areas needed to be specified. The amendment of the act strengthens, on the one hand, the powers of the antitrust authority, and improves, on the other hand, the protection of the parties to all procedures, i.e. entrepreneurs and natural persons - says Tomasz Chróstny, President of UOKiK.

Inspections and searches

The amendment introduces changes concerning searches. Some of them aim at specification of the current provisions both with regard to inspections and searches carried out at a trader, as well as searches carried out in an apartment or in any other room, real estate or means of transport.

Fines

The manner of imposing fines on entrepreneurs who do not cooperate with UOKiK at the stage of gathering evidence or provide false information and commit infringements related to inspection and search has also changed. Previously, such practices were threatened with a sanction of up to the equivalent of EUR 50 million. Following the amendment to the Act, it is fine of up to 3% of the turnover earned in the year preceding the decision. The modification is in line with the requirements imposed by the directive which states that fines for violations of this type be imposed proportionally to the overall, global turnover of the enterprises in question.

Periodic fines have also been introduced. They will amount to up to 5% of the average daily turnover of the entrepreneur in the year preceding their imposition. Such sanctions will threaten, inter alia, for each day of delay in the implementation of the Authority's decision or related judicial decisions.

The leniency programme

Changes have also been introduced to the leniency programme. One of them is the exclusion of criminal liability for participating in a tender collusion for entrepreneurs who apply for a reduction or waiver of a penalty. Until today, the threat of imprisonment has deterred entrepreneurs from admitting the infringement. The aim of the amendments is to detect more effectively cases of unauthorised cooperation between economic operators seeking public contracts.

Obligation to provide information

According to the amendment to the Act, everyone is currently obliged to provide UOKiK with the requested information or documents. Previously, only entrepreneurs or their unions were obliged to do so. An open catalogue of entities that may be the addressees of the Office's request has been introduced.

Importantly, the extension of the obliged entities to provide information is accompanied by the provision of the necessary procedural guarantees to natural persons.

International cooperation

The implementation of the ECN+ Directive allows for more effective cooperation between national authorities. The amendments to the Act provide, among other things, for the assistance of UOKiK in conducting proceedings by antitrust authorities of other EU Member States. For example, a competition authority may request a witness or, in justified cases, request a hearing with a court in a case pending in another country. Antitrust offices in other countries may verify the implementation of UOKiK's decisions on their territory, similarly the Polish Authority, at the request of its counterpart from another country, may verify the implementation of the decision.

Enhanced independence

It is also one of the assumptions behind the directive to boost the independence of the persons acting in the capacity of antitrust authorities in terms of clear-cut criteria applicable to both their appointment and removal, and to the manner in which their functions are performed.

To this end, the amendment introduced the term of office of the President of UOKiK, which will be elected for 5 years. The dismissal of the antitrust authority will only be possible in precisely defined situations. These will include, inter alia, the following: legally valid conviction for a criminal offense caused by intentional conduct and the deprivation of public rights or of the Polish citizenship. The above means that the dismissal criteria are similar to those applicable to other domestic market regulators, e.g. the President of the Energy Regulatory Office. The manner in which the President of UOKiK is appointed, however, will not change. As it has been the case so far, the President of UOKiK will be appointed in an open and competitive procedure, by the President of the Council of Ministers.

The amendment to the Act on Competition and Consumer Protection entered into force on 20 May 2023. Currently, work is underway at the Office on updating documents concerning the application of competition protection regulations by UOKiK.

Additional information for the media:

UOKiK Press Office
pl. Powstańców Warszawy 1, 00-950 Warszawa, Poland
Phone: 22 55 60 246
Email: biuroprasowe@uokik.gov.pl
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