6. Marco teórico referencial
6.1. Estado del arte de la aplicación del modelo TPACK
6.1.2. A nivel nacional
1. General remarks
The currently applicable Act of 2007 on Competition and Consumer Protection (hereafter, the Competition Act)1 underwent its last amendment in 2011, making 2012 a relatively quiet year for Polish antitrust legislation. At the same time, no new relevant regulations were issued by the Council of Ministers, nor existing ones amended. In light of the above, this review focuses on changes introduced in 2012 to Poland’s legislation on judicial antitrust
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proceedings contained in the Code of Civil Procedure2. Also covered will be some novel issues in the area of legally non-binding guidelines of the UOKiK President.
Without any actual changes to the Competition Act, the UOKiK President presented in May 2012 draft assumptions for the Government’s draft Competition and Consumer Protection Amendment Act (hereafter, Draft Amendment Act) which was submitted for public consultation. After several months of public discussion regarding the need for an antitrust reform and its
scope, the UOKiK President ultimately published in November 2012 a Draft
Amendment Act3. It is worth noting that the original draft assumptions were the basis for the Draft Explanatory Notes accompanying the Draft Amendment Act. The most important legislative changes proposed by the UOKiK President relate to the introduction into the Polish legal system of the following concepts:
(1) the leniency plus programme, a kind of supplement or addition to the ordinary leniency programme;
(2) behavioural and structural remedies optionally applied by the UOKiK President when cease-and-desist orders are issued4;
(3) two-stage proceedings in concentration control;
(4) settlements in cases relating to practices restricting competition and (5) personal administrative (financial) liability of managers for some
anticompetitive agreements.
The last proposal in particular (that is, to extend antitrust sanctions to managers), attracted strong opposition from organisations of undertakings. According to the NCA, the proposed changes, if incorporated into the Competition Act of 2007, would eliminate a number of problems inherent in the current system. If the Draft Amendment Act is enacted by the Polish Parliament – which may happen in 2014 – the resulting Amendment Act will certainly be the main antitrust development in Poland of 2014.
2 Act of 17 November 1964 (Journal of Laws 1964 No.43, item 296, as amended); hereafter, Code.
3 The Draft Act was adopted by the Council of Ministers in July 2013 and sent to the Parliament in August 2013. The lower house of the Polish Parliament (in Polish: Sejm) commenced work on the Draft Act in September 2013 and forwarded it to the Parliamentary Committee of Economy. In October 2013, the Committee appointed an extraordinary subcommittee which holds its meetings regularly once in two weeks starting from 23 October 2013. The Draft Act is currently being processed by the subcommittee which has been given a mandate to carry out a full review of the Draft Act.
4 The proposal is modelled on Article 9 of Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ [2003] L 1/1; hereafter, Regulation 1/2003.
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2. Amendments to legal provisions regarding judicial antitrust proceedings
Judicial antitrust proceedings regarding appeals from the decisions and resolutions issued by the UOKiK President are governed by Polish rules on civil procedure. A number of significant changes were introduced, as of3 May 2012, into those rules by the Code of Civil Procedure Amendment
Act dated 16 September 2011 (hereafter, CCP Amendment Act)5. This legal
development also influenced judicial antitrust proceedings.
Until 3 May 2012, Section IVa introduced in 1989 into Part I (‘Case examination’) Book I (‘Contentious proceedings’) Title VII (‘Specific types of proceedings’) of the CCP – contained rules on judicial proceedings to review economic cases (commercial proceedings). The second chapter in this Section (Articles 47928–47935) dealt with judicial antitrust proceedings. Issues regarding judicial antitrust proceedings not regulated by the second chapter were subject to the first chapter of this Section (Articles 4791–47927), that is, general provisions on commercial proceedings. Article 1(46) of the CCP Amendment Act repealed the first chapter in Section IVa. At the same time, according to Article 1(45) of the CCP Amendment Act, Section IVa was re-titled into ‘Proceedings to review cases relating to competition protection’. All specific elements of commercial proceedings as compared to ordinary civil cases, resulting from general provisions on commercial proceedings, were therefore abolished. They shall thus no longer be applied to cases relating to competition protection and other cases decided by the Court of Competition and Consumer Protection (in Polish: Sąd Ochrony Konkurencji i Konsumentów; hereafter, SOKiK). However, under transitional rules (Article 9(7) of the CCP Amendment Act), earlier provisions shall still be applicable to cases concerning decisions issued by the UOKiK President before 3 May 2012.
Since 3 May 2012, a number of specific legal solutions no longer apply with respect to judicial antitrust proceedings. First, the CCP Amendment Act repealed the so-called ‘non-admission of evidence’ principle6 – specific rules on the burden of proof applicable to undertakings incorporated in Articles 47912 § 1 and 47914 § 1–2 CCP. Amended Articles 207 and 217 CCP are now applicable instead with respect to evidence. They do not differentiate between commercial cases and ‘ordinary’ civil cases, as well as between submissions by undertakings and other procedural parties. As a rule, the presiding judge may in all cases require parties to file submissions, giving them directions on the order of submissions and their deadlines, as well as stress which 5 Act Amending the Civil Procedure Code and Some Other Acts (Journal of Laws 2011 No. 233, item 1381).
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points must be explained and clarified. Parties are not allowed to file any submissions other than a statement of claim, response to the statement of claim and those required by the court, unless such submissions solely contain additional evidentiary motions. Under the new approach, it is now possible for the presiding judge to disallow parties to file any submissions other than a statement of claim and the defendant’s response thereto. It thus seems that statutory non-admission of evidence has now been replaced by judicial non- admission of evidence. As the non-admission of evidence principle remains part of the CCP, albeit it has taken on a different form, not much has in truth been changed for undertakings as parties to judicial antitrust proceedings7.
Second, Article 4799 § 1 CCP was repealed which used to contain an
exception to the rule that in the course of proceedings documents are served by the court. A party represented by a solicitor, legal advisor, patent attorney or the General Attorney of the Treasury (professional representatives) used to be obliged to serve most documents directly to the other party irrespective of whether the latter was represented by a professional representative or not. Currently, the general rule of Article 132 § 1 CCP states that a party not represented by a professional representative receives documents from the other party served by the court.
Third, the CCP Amendment Act repealed the non-binding three-month deadline for rendering judgments (Article 47916 CCP).
Fourth, the contents of Article 4796a were transferred to Article 47929a CCP. However, by doing so, the scope of amici curiae participation in judicial proceedings has been limited because while Article 4796a CCP used to relate to all economic cases including those between undertakings, Article 47929a CCP concerns only those relating to competition protection reviewed by SOKiK. The intervention of the UOKiK President as amicus curiae in private antitrust actions is not permitted.
It is worth noting in the closing lines of this section that Article 47929 § 2 CCP has not been repealed despite the fact that it has no purpose. It regards the right of 3rd parties allowed to take part in administrative proceedings before the UOKiK President (as so-called interested parties) to later become participants of proceedings before SOKiK. However, the current Competition Act of 2007, unlike its predecessor8, does not provide for the institution of interested parties to be participants of antitrust proceedings. Therefore, Article 47929 § 2 CCP should be repealed.
7 See A. Piszcz, ‘Still-unpopular Sanctions: The Private Antitrust Enforcement Developments in Poland after the 2008 White Paper’ (2012) 5(7) YARS 71–72.
8 Act of 15 December 2000 on competition and consumer protection (consolidated text: Journal of Laws 2005 No. 244, item 2080, as amended); hereafter: Competition Act 2000.
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3. New ‘soft law’ of the UOKiK President
According to Article 32(4) of the Competition Ac t, the Official Journal of UOKiK is used for the publication of documents such as guidelines (in Polish: wyjaśnienia) that are of significant importance for the application of legal provisions encompassed by the scope of the activities of the NCA. In 2012, the UOKiK President published two sets of such guidelines (UOKiK Official Journal No. 1 of 1 August 2012):
1) Guidelines on the assessment of notified concentrations;
2) Guidelines for the issuance of commitment decisions in cases of competition-restricting practices and practices infringing collective consumer interests.
The Guidelines on the assessment of notified concentrations are a lengthy (42 pages) document that supplements the 2011 Guidelines on the criteria and procedure of notifying the intention to concentrate to the UOKiK President (UOKiK Official Journal No. 1). The new soft law act is divided into two sections – the first part focuses on the relevant market, while the second part deals with a concentration’s influence on competition. Covered in the first part are thus topics such as product market, demand-side substitution, supply- side substitution, asymmetric substitution and geographic market. The second part examines vertical, horizontal (both non-coordinated and coordinated) and conglomerate effects of concentrations as well as contractual competition restrictions related to concentrations.
By contrast, the UOKiK President’s Guidelines for the issuance of commitment decisions in cases of competition-restricting practices and practices infringing collective consumer interests are much more concise (5½ pages). They relate to decisions of the NCA covered by Articles 12 and 28 of the Polish Competition Act. They provide information on:
(1) conditions for the adoption of commitment decisions such as rendering anticompetitive practices plausible, an undertaking’s obligation to “take or discontinue certain actions aimed at preventing an infringement”;
(2) issuance of commitment decisions with reference to competition- restricting agreements;
(3) content of commitments offered by undertakings; (4) elements of commitment decisions, and
(5) failure to comply with a commitment decision.
The status of Guidelines within the Polish legal system is clear – they are not legally binding on undertakings – this fact is explicitly confirmed in the two soft-law acts themselves. Still, they provide an important source of information and advice for undertakings which reduces legal uncertainty.
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