AmCham’s activities related to the implementation of the ECN+ Directive (changes in the competition law)

AmCham is active in work on the ongoing implementation of the ECN + Directive into the Polish legal system (Directive EU 2019/1 of the European Parliament and of the Council of 11 December 2018 aimed at empowering the competition authorities of the Member States to enforce law more effectively and ensure the proper functioning of the internal market).

Currently, the draft act (the act amending the act on competition and consumer protection and certain other acts (Senate Paper No. 936)), which should reflect the provisions of the Directive, is being processed in the Senate and will be discussed on March 28 during the meeting of the Senate Committee on National Economy and Innovation – in which Marta Pawlak, Legal & Public Policy Director at AmCham and member of the Executive Leadership Team will participate, presenting the serious concerns of our member companies towards the draft act. The vote on the act is to be held during the Senate meeting on March 29-30.

American companies in Poland are concerned about the polish proposal: the draft currently being processed introduces changes that are not required by the Directive or go further than provided for by the Directive. In addition, the Polish draft act contains regulations that apply retroactively, which is a worrying signal for US investors who may question the regulatory stability in Poland.

Two regulations cause the most significant threats:

1. Article 13 of the Act provides that the previous provisions shall apply to cases in which proceedings before the President of the Office of Competition and Consumer Protection were initiated before the date of entry into force of this act. Thus, if the President of the Office of Competition and Consumer Protection initiated antimonopoly proceedings after the amendments entered into force, but concerning the action that began long before it entered into force – as a result of the application of the amended articles of the act:

• would impose a penalty for an act that was not punishable at the time of its perpetration, and
• would apply the new, much less favorable provisions on penalties to the entrepreneur’s act (compared to those applicable when the entrepreneur committed the infringement).

Therefore, we propose that certain provisions should not be applied to
a) infringements started and completed before the date of entry into force of this act, and
b) the period of infringement until the date of entry into force of this act in the case of infringements started before the entry into force and continued after the entry into force of this act.

2. Detailed justification of the allegations (SUZ)

The Directive ensures that the antitrust authority “before taking a decision” adopts SUZ. The Polish draft proposes that the President of the Office should be obliged to justify the decision to initiate antimonopoly proceedings and that this justification should contain the elements of the SUZ required by the Directive, but that at a later stage, the authority would no longer issue the SUZ in the current form.

However, at the time of initiation of antimonopoly proceedings, the President of the Office usually does not yet have a precise “theory of damage” (ie really “detailed” allegations) or most of the evidence gathered. Therefore, the SUZ issued at this stage will not fulfill its role of guaranteeing the entrepreneur’s right to defense.

Meanwhile, the SUZ is a critical guarantee of the entrepreneur’s right to defense. Thanks to it, the entrepreneur knows against which allegations he has to defend himself. However, it can fulfill its function only if it is created when the position of the President of the Office is sufficiently crystallized. SUZ adopted prematurely would describe the allegations in general terms, without a precise “theory of harm”. Then the entrepreneur would not know precisely what allegations he is defending against.

Therefore, we postulate the presentation of the SUZ after the completion of the collection of evidence, and before issuing a decision. And if new significant circumstances or evidence appear after presenting the SUZ to the party, the President of UOKiK will submit a supplementary SUZ.

Our position, specifying these provisions and postulates is distributed among the senators. Copy of the letter is available here.