Cartels 2022 Comparisons

Statutory Basis for the Public Enforcement of Competition Laws

The Act on Competition and Consumers Protection of 2007 (ACCP) provides for the prohibition of anti-competitive agreements and the abuse of dominance. The ACCP also sets out the powers and procedures of the President of the Office for Competition and Consumer Protection (OCCP; public enforcement agency), which is the national competition authority in Poland. In the proceedings before the OCCP, in addition to the provisions of the ACCP, the regime of the Administrative Procedures Code is applicable, except for the rules on the evidence laid down in the Civil Procedures Code. 

Additionally, since Poland acceded to the EU, ie, 1 May 2004, the OCCP has been applying the EU legal framework on competition infringements that have an effect on trade between members.

Any individual involved in bid rigging in public tenders is criminally liable under Article 305 of the Penal Code. Bid rigging (in general, not only in public tenders) is considered an anti-competitive agreement. Other provisions of the Penal Code may apply if the particular conduct of an individual involved in different types of anti-competitive agreements also amounts to another type of crime (eg, fraud). 

Furthermore, the Act on the liability of collective entities for prohibited acts under threat of a penalty of 2002 applies to enterprises, the managers of which were sentenced for committing a crime. 

Administrative Liability

Infringements of competition rules are administrative delicts. Both enterprises and their managers are liable for delicts committed by enterprises, whereas the latter only if they intentionally allow the enterprise to breach competition law. The OCCP investigates breaches of competition laws and issues cease-and-desist orders and fines to enterprises and liable managers. Managers do not bear administrative liability but criminal liability for bid rigging. Legislative works on amendments in that regard are in progress and are intended to give the OCCP the powers to order a change in the corporate structure of an enterprise in the case of an infringement of competition law. 

Any decision of the OCCP on public enforcement may be reviewed by the Court of Competition and Consumer Protection (CCCP). In turn, the appeal may be filed against its verdicts with the Appellate Court in Warsaw and then the cassation appeal with the Supreme Court.

Civil Liability

The unlawfulness of cartel conduct may be invoked, either as  an offensive or as a defensive argument, in any civil case when such unlawfulness is a prerequisite of a claim (eg, actions for damages) or, accordingly, when it nullifies a claim (eg, actions for non-performance of a contract). Civil cases are resolved by civil courts.

Criminal Liability

Bid rigging in public tenders is punishable by up to three years’ imprisonment, according to Article 305 of the Penal Code. A public prosecutor conducts an investigation and supports the indictment before a criminal court. Any other sanctions set out by the Penal Code may be imposed by a court, if applicable.

In addition to the above, an enterprise may be fined in proceedings before the criminal court if its manager was sentenced for committing a crime that simultaneously constituted a breach of competition laws on his part. 

Private Enforcement

There are no conditions precedent to civil actions. The unlawfulness of cartel conduct may be invoked in various types of civil litigation. Cases in which a breach of competition rules may be used as offensive arguments are those where the claimant seeks damages or confirmation of the nullity of a contract by the court either as such or to obtain an injunction, interim measures, supply or admission to a distribution system. A defendant sued for a non-performance may, on the other hand, plead an infringement of competition rules defensively as a “shield” against claims based on a (null) contract.

The Act on Actions for Damages Caused by Infringements of the Provisions of Competition Law of 2017 (the Act on Damages) implements Directive 2014/104/EU of the European Parliament and the Council. It sets out both substantive legal conditions and procedural rules for actions for damages against enterprises (including sole proprietorships).

If there are no special regulations in the Act on Damages with regard to private enforcement, the general rules of the Civil Code and the Civil Procedures Code apply.

The Act on pursuing claims in group proceedings of 2019 may be applicable. Actions for damages caused by competition law infringements, like other actions regarding torts, may be filed under this act as “class actions”.

The Meaningof “Cartel Conduct”

There is no statutory definition of “cartel conduct”. Based on the line of judgments, which also draws on the practice of the European Commission, it can be said that “cartel conduct” is a situation when, instead of autonomously making decisions on their market conduct that involves a certain risk, enterprises give up their independence and co-ordinate their market strategies to increase their market power and thereby reduce business risk.

The prohibitions of cartel conduct under Article 6 (1) of the ACCP are very similar to those of Article 101 (1) of the Treaty on the Functioning of the European Union (TFEU). Article 6 (1) ACCP prohibits any vertical or horizontal agreements between enterprises (including sole proprietorships), decisions by associations of enterprises, and concerted practices that have as their object or effect the prevention, restriction or distortion of competition. The prohibition covers all branches of the economy. 

The OCCP takes the stance that all agreements prohibited under Article 6 (1) ACCP, namely both horizontal and vertical agreements, are “cartels”. 

Article  6 (2) ACCP lists examples of anticompetitive agreements, which comprise: 

• directly or indirectly fixing purchase and resale prices or any other trading conditions; 
• limiting or controlling production, markets, technical development or investments; 
• division of downstream or upstream markets; 
• applying dissimilar conditions to equivalent transactions with third parties, thereby creating diversified conditions of competition for them; 
• concluding contracts subject to acceptance by the other party of additional obligations which, by their nature or according to commercial custom, have no connection with the subject of such contracts;
• limiting access to the market or eliminating enterprises from the market who are not parties to the agreement;
• collusion between enterprises entering a tender, or between those enterprises and the enterprise organising the tender, on the terms and conditions of bids to be proposed, particularly regarding the scope of work and the price (so-called bid rigging).

The list is non-exhaustive. Other agreements can also be found to be anti-competitive, in which case, the OCCP has to justify their detrimental effects on competition (present the “theory of harm”).

Exemptions

However, the regulations of the OCCP also set out so-called de minimis exemptions. The prohibition of anti-competitive agreements does not apply to agreements concluded between:

• competitors – if their combined share of the relevant market encompassed by the agreement does not exceed 5%;
• non-competing enterprises – if none of them has a share exceeding 10% of the relevant market encompassed by the agreement.

But the above exemptions do not apply to so-called “hardcore” restrictions:

• directly or indirectly fixing purchase and resale prices or any other trading conditions; 
• limiting or controlling production, markets, technical development or investments; 
• division of downstream or upstream markets; 
• bid rigging.

Article 8 (1) ACCP provides for an individual exemption from the cartel prohibition if the conduct contributes to an improvement in the production or distribution of goods (or services) while allowing consumers a fair share of the resulting benefit or promoting technical or economic progress. Such conduct must be necessary for the achievement of the beneficial objectives and cannot eliminate competition in a substantial proportion of the relevant products (or services). An enterprise that wants to take advantage of the exemption must present evidence that all the specified conditions were met.

Additionally, according to Article 8 (3) ACCP, the Polish government is entitled to issue regulations on group exemptions. Such group exemptions are specified for certain types of vertical restraints, technology transfer agreements and R&D agreements. 

Limitation Periods

The OCCP is not permitted to open anti-monopoly proceedings if five years have passed since the end of the year in which the infringement ended. It is also not permitted to launch proceedings against a cartelist’s manager if five years have passed since the end of the year in which they stopped intentionally allowing for the infringement of the competition laws by the enterprise they manage. 

Private claims for damages are time-barred five years after the claim becomes known (and the damage incurred and the party causing the damage to become known). Regardless of this, the limitation period runs no longer than ten years from the end of the infringement of competition. The limitation period does not run while proceedings before a civil court are ongoing. Furthermore, this period is suspended during any proceedings or investigations into the infringement by the OCCP, the European Commission or NCAs. The suspension ends one year after any such public enforcement proceedings end.

A five-year limitation period applies under criminal law and is measured from the moment the crime was committed. 

Extraterritorial Jurisdiction

Article 1 (2) ACCP refers to the so-called “effects doctrine” that provides that Polish domestic competition rules apply and the OCCP has the jurisdiction to handle any case regarding any anticompetitive conduct (including cartel conduct) which causes or may cause detrimental effects to competition within the territory of Poland. In this respect, the nationality of the perpetrators and the location of the anti-competitive conduct are irrelevant.

While exercising jurisdiction extraterritorially, the OCCP would likely serve official documents directly to an enterprise’s legal address abroad (which it did in the past) or file a request for assistance with the competition authorities of other countries. However, the admissibility of such a practice is arguable. Domestic procedural regulations in that regard are insufficient. Additionally, Poland is not a party to any international treaty that would allow the OCCP to co-operate with the competition authorities of other countries, especially regarding the enforcement of decisions imposing fines.

These problems do not concern cases that include both the infringement of domestic competition rules and the restriction of trade between the member states, which induces the application of the EU competition regime. In such cases, mutual assistance among NCAs in procedural matters is set out in the EU 2019/1 Directive. The co-operation provided for therein includes the service of documents and the execution of decisions.

Comity

The enforcers of competition law rules in Poland are under no legal obligation to apply the principles of comity, neither in public nor in private enforcement proceedings.

Special Circumstances of the COVID-19 Pandemic

OCCP signed the joint statement by the European Competition Network (ECN) of March 2021 on the application of competition law during the Corona crisis. In the statement, the NCAs declared that they would not “actively intervene” in “necessary and temporary” co-operation between enterprises intended to ensure the supply of scarce products. Within this initiative, the OCCP opened a special mailbox to which enterprises can send enquiries regarding the admissibility of their temporary market activities in light of the competition rules. The OCCP declares that, in reply to such a query, it will give its informal opinion on whether the conditions were met for the individual exemption from the prohibition on anti-competitive agreements. The OCCP provides information on its website about the operation of this special, informal communication channel. 

No particular changes in the OCCP’s policy in the face of the COVID-19 pandemic have been noticeable. 

As for the procedure, in civil proceedings – both in public and private enforcement – a public hearing may take place online.

No further developments on this are expected.

The Course of Public Enforcement Proceedings

Any publicly accessible source of information is of use to the OCCP to detect a breach. The OCCP may conduct market research, whereby it sends out questions to participants of the market. The whistle-blower programme is also established. Within its framework, anyone may anonymously inform the OCCP about the infringement. If the OCCP finds or receives plausible information on a possible infringement, it typically takes the first steps in opening preliminary (explanatory) proceedings. There are no parties to such proceedings. During these proceedings, to obtain more evidence, the OCCP may send out formal enquiries to enterprises (under the current regulations, questions to individuals other than sole proprietors or managers who filed a leniency application are not permitted).

Within the preliminary proceedings, both announced and unannounced inspections (“dawn raids”) may be conducted. The latter are only permitted after sufficient evidence has been obtained to reasonably justify the suspicion that a particular enterprise is a party to a prohibited agreement.

After the OCCP has decided that the evidence in its possession justifies pressing charges against particular enterprises, it closes the explanatory proceedings and opens the main anti-monopoly proceedings to which the charged enterprises are parties. The OCCP may also press charges against enterprises’ managers if there are legal grounds for doing so.

At this stage, the OCCP may invoke a quasi-settlement procedure (“voluntary acceptance of the fine”). Within its framework, a party submits additional information on the alleged infringement and acknowledges its role in it in exchange for a reduction in the fine.

Annouced inspections and dawn raids are permitted during the main antitrust proceedings, but it is not common practice to conduct them at this stage.

Inspections and Their Scope

An inspection can be both announced and unannounced (“dawn raid”). In practice, the latter is the rule in cartel proceedings. It can even be said that the power to run them is abused by the OCCP because although unannounced inspections are legal instruments of an exceptional nature, they are treated as a standard method of obtaining evidence in the OCCP’s proceedings. An unannounced inspection can only be conducted when authorised by an order of the CCCP. Such an order defines both the temporal and material scope of the inspection. If an inspection is announced, its scope is defined in the inspection authorisation issued by the President of the OCCP.

The OCCP officials handling the search are entitled to read and copy only such documents – regardless of their format – available to the enterprise being inspected and fall within the permitted scope of the inspection. They are also entitled to access any devices, including computers, mobile phones, servers and emails, available to the inspected enterprise and copy data from them. The inspected company may file an objection before the CCCP against the OCCP’s collection of evidence falling outside the permitted scope of the inspection. The evidence copied remains in the OCCP’s possession until it is ordered by the court in a final decision that it should be returned to the enterprise. 

Under the statutory regime, it is permissible to seize original relevant documents or other items that can be potential sources of evidence and take them off the site of the inspection. Although a seizure order must be issued, the statute does not provide for any particular conditions for admissibility of the seizure. The seizure may only last seven days. In practice, a seizure is rare. Instead, the inspectors usually save the prospective evidence material on-site, in which case they seal the pre-selected documents or devices at the premises of the inspected enterprise until they familiarise themselves with their content. 

Co-operation Obligation of the Inspected Enterprise

An enterprise faced with inspection is obliged to fully co-operate with the inspectors under the sanction of a fine which currently amounts to EUR50 million. The enterprise (accordingly: the person authorised to represent it according to its statutory deeds) or an individual authorised by the enterprise is obliged to respond to interviews. In practice, the OCCP inspectors specify the enterprise’s officers (managers) or employees who need to be authorised to be interviewed. 

The interviews are recorded either in a written inspection report or audio recording. Regardless of the form of the recording, the inspected enterprise obtains a copy of it within a copy of the complete inspection report or together with it (as an attachment).

In practice, inspected enterprises also receive second copies of all documents copied by the inspectors, although there is no clear rule.

Counsel, whether external or in-house, may be present on-site during all inspection activities. However, the OCCP officials are not obliged to wait for their arrival to start the inspection or withhold any inspection activities, should the counsel not be present. The role of a counsel during an inspection is to make sure that the inspectors do not abuse their powers and do not overstep the permitted scope of the inspection and inform the representatives, officers (managers) and employees of the enterprise about their right to refuse to answer questions asked in an interview if this is applicable. 

Spoliation of Information

The regulations on public enforcement do not impose any general obligations on enterprises preventing them from destroying information. 

However, the obligation to co-operate in the course of inspections includes the prohibition to falsify or destroy documents or items that can include information of relevance to the case.

As for private enforcement, enterprises are under no general obligation to preserve evidence when they know, or should know, that the evidence is likely to be relevant to pending or future litigation. However, under the general civil proceedings regime, even before the action is brought before the court, the future party is entitled to request that the court preserves potential sources of evidence. The statutory prerequisites for such preservation are:

• an objective apprehension that, in the lack of such preservation, it will be impossible or too difficult to provide such evidence; or
• the existence of other reasons that make it  necessary to establish the existing state of affairs. 

In addition, based on the general principle of the free assessment of evidence, which applies in civil proceedings, a court is also entitled to assess the meaning of a party’s refusal to present evidence or an obstacle posed by a party when taking such evidence. Special regulations set out by the Act on Damages also provide that, should the party evade fulfilling the court’s order to disclose evidence or destroy such evidence to foil its disclosure, the court may consider the facts which were supposed to be established by this evidence as having been established, unless the party proves otherwise.

Role of Counsel

Typically, counsel is only appointed by the inspected enterprise, who also advises the enterprise’s representatives and its officers (managers) and employees. However, the enterprise’s officers and employees have the right to appoint counsel of their own, should they choose to do so. 

The enterprise’s officers should appoint their own counsel if any conflict of interest is revealed between them and the inspected enterprise, as they may be held personally liable for competition law infringements committed by the enterprise they manage. The counsel is not a “defence counsel” because inspections are usually conducted during the explanatory proceedings, to which there are no parties. As there is technically no “defendant”, no one can exercise the right to defence. 

In such circumstances, the role of the counsel, whether external or in-house, is to ensure that the officials conducting the inspection do not abuse their powers, and especially that they will not try to gather any evidence that does not fall within the scope of the search so that the inspection does not become a “fishing expedition”. Should the OCCP officials try to familiarise themselves with or copy any documents encompassed by the legal professional privilege, it is the counsel’s duty to demand that they stop that attempt and if there is a disagreement on whether the particular document is encompassed by this privilege, to demand that it is sealed and submitted for review by the CCCP. Counsel should also establish whether leniency is available.

Counsel may also advise those obliged to respond to interviews to refuse to answer particular questions if the privilege against self-incrimination is applicable. Counsel’s duty is also to ensure that the inspection report reflects the course of the inspection precisely enough and to advise whether the inspected enterprise should sign it or not.

After the main anti-monopoly proceedings are initiated, each of the parties to which both the enterprise and its officers may become part may appoint their counsels. At the initial stage of these proceedings, the counsels should ensure that the charges precisely define the alleged anticompetitive conduct so that the client can adequately exercise its right of defence.

Obtaining Evidence in Public Enforcement Proceedings

Documentary evidence is obtained in cartel cases by the OCCP by copying the relevant documents during inspections and contacting enterprises to answer formal enquiries in the course of the explanatory proceedings or main anti-monopoly proceedings. The OCCP is not empowered to send out written enquiries to individuals. However, testimonies are usually obtained during the inspection from the representatives of the enterprise being inspected, including its officers or employees. 

Privilege against self-incrimination applies to oral testimonies. However, acknowledgement of being involved in anticompetitive conduct is not considered “self-incrimination”. Interviewees are therefore obliged to answer any questions about their involvement in the alleged cartel activity.

The scope of the privilege against self-incrimination varies depending on whether an interview is conducted in during an inspection or on other occasions. In the first case, the interviewee is only entitled to refuse to answer particular questions if answering them would expose them or their spouse or relatives to criminal liability. In the second, the privilege extends to situations where answering a question would expose the interviewee (or their spouse or relatives) to disgrace, severe and direct material damage, or if it would constitute a breach of essential professional secrecy. These differences explain why interviews in the proceedings before the OCCP are mainly conducted during inspections. 

As can be seen, there is a clear inconsistency between these provisions. Therefore, there are legislative works in progress in this respect.

According to the statutory rules, the Polish enforcement agency is permitted to take all kinds of evidence, eg, expert opinions, but in practice, other than interviews, it mainly obtains documentary evidence.

Requesting Evidence From Abroad

Enterprises are required to present all evidence available to them to the enforcement agency regardless of where it is located. The premise of “availability” is broadly interpreted by the OCCP. For example, during an inspection, the enterprise is often requested to obtain digital evidence from its parent or sister enterprises located abroad, the legality of which is arguable.

Under the current regulations, the Polish enforcement agency is not entitled to request individuals other than sole proprietors or managers who filed a leniency application to present any information or documents, although it is expected to be granted this right after amendments to ACCP are introduced.

Attorney-Client Privilege and “LPP”

An attorney-client privilege means the attorney’s right and duty to keep secret all information he obtained in any situation while providing legal advice or counselling in litigation. In addition, an institution similar to legal professional privilege (LPP) is applied to attorney-client communication that OCCP inspectors come across during a search. LPP, as known in common law systems, is not provided for in the ACCP. The ACCP does, however, contain a regulation referring to the Criminal Procedures Code, on the basis of which the OCCP’s inspectors are neither permitted to familiarise themselves with nor to copy any correspondence with an attorney of a searched enterprise, should it even fall within the scope of the inspection.

An attorney-client privilege and LPP cover external and in-house counsels admitted in the EU and EEA.

The privilege against self-incrimination applies to all interviewed individuals.

Requests for Information

The OCCP is not entitled to request individuals other than sole proprietors (or managers who filed a leniency notice) to present any information or documents. However, all enterprises, including sole proprietors, are obliged to reply to any enquiry for information by the OCCP. The scope of information that the OCCP may request is not restricted. 

The refusal to answer or provision of an incomplete or misleading answer is punishable with a fine of up to PLN50 million. Therefore, requests for information are usually not resisted. Fines for lack of co-operation are imposed in practice. 

Protection of Secrets

Trade secrets of the parties to the proceedings and those of other entities and other secrets protected under the law are also protected at every stage of public enforcement proceedings. Nobody except the officials in charge of the case, not even the parties, has access to such secrets. Case materials containing protected secrets are declared confidential by order of the OCCP at the request of the entitled entity. If there is a dispute between the applicant and the OCCP on whether particular information should be protected, it is resolved by the CCCP.

Counteracting Public Enforcement

Public enforcement of cartel cases is conducted in the public interest. Therefore, neither targeted enterprises nor their counsels have any legal instruments to prevent such enforcement. However, a counsel may try to use legal arguments to persuade the OCCP that the information and documents in the OCCP’s possession do not prove any anti-competitive behaviour and so the proceedings should not be launched or should be discontinued.

Leniency – General Rules

The leniency statement may be submitted throughout preliminary (explanatory) proceedings, as well as in the main anti-monopoly proceedings. The leniency statement may not be submitted after the OCCP’s decision has been issued. Only the “first in” leniency applicant can obtain full immunity (ie, no fine will be imposed on it). Enterprises making subsequent leniency statements can only qualify for a reduction in their fines.

Full Immunity

The company applying for the full immunity has to fulfil the following conditions:¬

•submit the leniency statement before other cartelists have done so; and¬

a)present evidence sufficient to initiate the main anti-monopoly proceedings or information enabling the OCCP to obtain such evidence; or¬

b)if the application was submitted after the main anti-monopoly proceedings has been opened, present evidence that will significantly contribute to the issuance of the decision by the OCCP or, at the request of the OCPP, deliver information enabling obtaining of such evidence, provided that the OCCP did not have such information or evidence at the time leniency application was submitted;¬

•fully co-operate with OCCP throughout both preliminary and the main antitrust proceedings; and¬

•not be the instigator of the agreement, since the entrepreneur that induced other companies to participate in the agreement is not eligible for leniency.

Partial Immunity

Applicants who were not the first to apply for leniency are eligible for partial immunity, provided that they present evidence that is significant to the case at hand, which the OCCP had not had previously. In such a case, the fine is reduced by:

• 30‒50% of the amount of the penalty that would have been imposed on the enterprise had it not submitted the application – for the enterprise that first presented such new significant evidence;
• 20‒30% – for the entrepreneur who was the second to present such new significant evidence; or
• a maximum of 20% on other entrepreneurs who present such new significant evidence.

Other conditions to be met:

• in the leniency submission, the applicant must admit its participation in the anti-competitive practice;
• the applicant is obliged to cease such participation (no later than at the moment of submission of the leniency statement);
• the applicant is not permitted to disclose the fact that it submitted the application without the OCCP’s consent.

“Leniency Plus”, Abridged and Simplified Leniency Statements

Within the “leniency plus” programme, the fine imposed on a leniency applicant is reduced by 30% if – in addition to submitting the leniency application in the pending proceedings – it informs the OCCP about another anti-competitive agreement, with regard to which no proceedings have yet been launched.

The ACCP’s regulations also provide for the possibility of obtaining a “marker” upon submitting an abridged motion for leniency. The motion must include certain important information regarding the infringement. Upon such a submission, the OCCP imposes a deadline for completing the application for leniency.

A simplified leniency statement is also possible if the enterprise applies for leniency in the proceedings before the European Commission. This is also a kind of “marker” securing “a place in the line” if the OCCP opens infringement proceedings that the European Commission has investigated.

Leniency Possibilities for Managers

Managers can submit either an abridged or a full motion for leniency. They are also covered by the leniency procedure involving the enterprise they manage. The fine imposed on the manager is reduced on the terms that apply to their enterprise. In particular cases, the fine imposed on the manager can be reduced for his co-operation, even if the fine for his enterprise is not.

Under the criminal procedure regulations, defendants in criminal cases can directly provide information to a public prosecutor or criminal court on the conduct of a cartel. Such co-operation will be reflected in a reduction in the penalty. 

Amnesty

There is no special amnesty regime for competition infringements. In rare situations where the infringement of the competition laws also entails criminal liability of the cartelists’ managers, the general criminal law regime on punishment applies. This includes, eg, extraordinary mitigation or a waiver of the penalty.

Employee Testimony

The OCCP may interview the employees of enterprises, including their officers, during an inspection if they have the enterprise’s authorisation to represent it during the inspection. Any individual may be interviewed by the OCCP as a witness outside of the inspection. No authorisation from the enterprise is then required. Interviews outside inspections hardly ever take place. The investigative powers of the OCCP would only be limited by the right of the interviewees to invoke their privilege against self-incrimination, if applicable.

Evidence From the Target Enterprise

All enterprises, including those which are the targets of cartel proceedings, are obliged to submit any document at the request of the OCCP. The range of documents or information the OCCP is entitled to request is not restricted in any way. Such requests are made in writing, in the form of a questionnaire and are formally served by traditional mail.

Evidence From Abroad

The OCCP is not empowered to send out enquiries to individuals that are not entrepreneurs (or leniency applicants). The OCCP may seek information from individuals by interviewing them – either during a dawn raid, as representatives of an inspected enterprise or at other stages of the proceedings as witnesses. Interviews may only take place in Poland. 

The OCCP happens to seek information from enterprises located outside Poland. The investigative powers of the OCCP in such situations differ depending on whether it enforces Polish domestic regulations only or also EU regulations. 

In cases based on the domestic regulations only, requests for information to enterprises based abroad will be served to its proxy located in Poland, should it have one. The enterprises to which the requests are sent usually reply voluntarily, as they have assets in Poland on which fines could be imposed and executed for their refusal to respond. Sometimes, the OCCP officially serves requests for information directly to an enterprise’s address abroad. Admissibility of such action is, however, arguable. In such a case, the enterprise to which the request is sent theoretically risks a fine of up to PLN50 million should it refuse to answer. Such a fine is practically unenforceable if the enterprise does not have assets in Poland.

On the other hand, in cases based on the EU cartel regulations, ie, those regarding infringements that restrict trade between the EU member states, mutual assistance between NCAs in procedural matters is provided for in Directive EU 2019/1. These regulations provide both assistance in serving official documents and enforcement of decisions imposing fines. In practice, this means that the OCCP may as a rule seek information from any enterprise located in the EU because most public enforcement proceedings are launched to apply domestic competition rules and EU competition rules in parallel.

Evidence From Public Agencies

The OCCP may either formally or informally request any public authority to provide any information or document to it that may be relevant to the case. In practice, it rarely takes advantage of this power formally. Information and documents requested formally should be included in the case file as evidence. 

International Co-operation of the OCCP

The OCCP regularly works with national competition authorities of the EU member states (NCAs) within the ECN. So far, the co-operation has mainly involved the exchange of experience and the co-ordination of investigations regarding infringements of Article 101 TFEU and the exchange of information and evidence.

As Directive EU 2019/1 (“ECN Plus”) has entered into force, it should be expected that the co-operation within the ECN will involve intense mutual assistance of NCAs in taking evidence, and it will also include the enforcement of penalties, both for infringements and non-co-operation.

Theoretically, such extensive co-operation is only possible in cases where the provisions of EU competition law apply, ie, cases regarding infringements distorting competition in Poland and affecting trade between the member states. However, because of the vague scope of the latter term, this co-operation will probably cover most of the OCCP’s investigations.

There are no international treaties that would constitute a basis for the OCCP to co-operate with competition enforcement bodies from outside the EU. Based on the domestic regime, the OCCP has the power to take up such co-operation, although precise regulations on proceedings are lacking.

Such co-operation may take place ad hoc, by mutual consent of the collaborating counterparts.

Criminal Procedure

A criminal case might be filed against a cartelist’s officer if it was involved in bid rigging in the public procurement procedure and in other (rather rare) situations where elements of the officer’s behaviour related to the enterprise’s cartel  conduct constitute other types of crime. Should the OCCP suspect that any crime occurred, it is under the legal obligation to inform a public prosecutor. The latter first launches preparatory proceedings and, if the suspicion is confirmed, files and supports the indictment in front of a criminal court. All evidence has to be presented to the court. 

In the course of preparatory proceedings, the suspect can voluntarily surrender to a penalty. In such a case, the penalty negotiated between the court, public prosecutor and suspect is imposed in the court order. The indictment is not brought, and the trial is not held. 

Furthermore, after the public indictment is filed, the defendant can request a sentence without a public hearing. Also, on such an occasion, the court imposes the fine negotiated between the defendant, the public prosecutor and the court.

All evidence obtained by the OCCP is available to the suspect/defendant both during the preparatory proceedings and the court proceedings, including leniency statements, settlement submissions and evidence containing legally protected secrets (eg, trade secrets).

Introductory Remarks

Private enforcement involves filing an action before a civil court. 

Evidence is presented to the court as a whole in such proceedings. A settlement is possible before the action is filed and at any stage of the proceedings, but this is not mandatory. The claimant decides whether or not to file a civil action.

Actions for Damages

The parties to actions for damages have access to the information obtained by the OCCP, the European Commission or other NCAs during the public enforcement proceedings, except for the leniency statements and settlement submissions, the disclosure of which can never be ordered by the court. The court may only order the disclosure of information drawn up by natural or legal persons specifically for the public enforcement proceedings before the above authorities, information prepared by such an authority and provided to the parties during public enforcement proceedings, as well as withdrawn settlement proposals in the civil proceedings after the public enforcement proceedings are completed. If evidence obtained as a result of a disclosure procedure contains trade secrets or other legally protected secrets, the court may specify the rules on the access of the parties to such evidence.

The general civil procedure rules on evidence also apply to actions for damages.

Other Civil Actions

Parties to civil cases other than actions for damages where competition infringement is invoked as an offensive or defensive argument do not have access to evidence gathered before the OCCP. The general civil procedure rules on evidence apply in such cases. According to these rules, the court may require any third party to submit a document of relevance to the case at the request of any party or on its own initiative. The summoned party is obliged to submit the requested documents, except if such submission would expose that party (or their spouse or relatives) to disgrace, severe and direct material damage, or if it were to constitute a breach of essential professional secrecy.

The defendant may, of course, reveal any information prepared by it, with the exception that even its own leniency notice must be kept secret as long as the OCCP requires this.

Multiple Defendants

Under the civil process regime, it is permissible to file claims against two or more perpetrators in a single proceeding. It is entirely up to the claimant to decide how many cartel participants or their managers to sue. 

Burden of Proof

In the public enforcement proceedings, the burden of proof generally rests with the OCCP, which is obliged to prove that the alleged cartel activity took place. The OCCP does not have to prove that the infringement was blameworthy, although should it be proven such, this is an aggravating circumstance affecting the amount of the imposed fine.

The burden of proving that an infringement ceased lies with the defendant. A defendant also has to submit evidence that the pro-competitive effects of the agreement outweigh the detrimental ones if it wants to invoke the conditions for an individual exemption.

In civil proceedings for damages, the award of compensation depends on three premises:

• the defendant’s participation in the cartel; 
• the blame of this participation; and 
• the causal relationship between the blameworthy activity and the plaintiff’s damage.

Different regulations regarding the burden of proof apply, depending on whether the defendant sued for damages is a cartelist or a cartelist’s manager. When a claim is raised against a cartel member, be it a company or a sole proprietor, according to the special provisions of the Act on Damages, the plaintiff only has to prove the amount of damage because the statutory rules introduce both the presumption of blameworthiness and the causal relationship. The general procedural rules on liability for torts apply if a defendant is a cartelists’ manager. Therefore, the plaintiff will not only have to submit evidence of the amount of damage but also evidence of the blameworthiness of the defendant’s behaviour and the causal relationship  between this behaviour and the damage.

A final decision issued as a result of public enforcement proceedings, be it the OCCP’s decision or one issued by the reviewing court, is binding on the civil court in any private enforcement proceedings as to the finding that a breach of competition law took place. 

In criminal cases, the burden of proof rests with the public prosecutor. The court may take evidence on its own initiative, both to the advantage and disadvantage of the defendant.

Establishment of Facts

In public enforcement (administrative) proceedings, the Polish enforcement agency is a fact finder and obliged to apply the law.

In civil litigation, the parties are under the obligation to submit evidence by which facts claimed by them may be proven. The party does not have to submit evidence about the fact with regard to which the statute introduces presumptions or when the burden of proof is shifted to the opposing party. The proceedings are adversary, which means that a civil court is legally permitted to admit evidence on its own initiative only exceptionally. The court applies the law to facts established on the basis of all the evidence taken.

In criminal proceedings, the public prosecutor should present all the evidence to the court. The court also has the power to admit evidence at its own initiative. The court applies the law to facts established on the basis of all evidence that was taken.

Access to Evidence

All evidence obtained before the OCCP can be used in criminal proceedings, both in the preparatory phase before the public prosecutor and criminal courts.

There are no rules on the prohibition of the use of particular types of evidence in proceedings before the OCCP, including that obtained in criminal proceedings.

In private claims for damages, leniency statements and settlement submissions – whether submitted before the OCCP, the European Commission or other NCAs – cannot ever be subject to disclosure. The court may only order the disclosure of information prepared by a natural or legal person specifically for the purposes of the public enforcement proceedings before the OCCP, European Commission or other NCAs, information prepared by a competition authority and provided to the parties during such proceedings, as well as withdrawn settlement proposals, in civil proceedings after the public enforcement proceedings have been completed.

In other types of civil litigations, the evidence contained in the OCCP’s file will not be accessible to the parties unless a party itself is the source of such evidence.

General Rules on Evidence

Generally, all kinds of evidence can be taken in all types of proceedings (administrative, civil and criminal). The evidence obtained is freely assessed by the authority conducting the proceedings.

Role of Experts

In practice, experts’ opinions are not used as evidence in public enforcement proceedings in cartel cases. This is because the OCCP does not generally identify the precise level of harm caused by the cartel's conduct in its decisions. 

Economists or financial experts are more likely to be involved in follow-on civil actions for damages to quantify the damage. 

Recognition of Privileges

In public enforcement proceedings, enterprises involved in a cartel do not enjoy any privileges. Sole proprietors, cartelists’ representatives or managers and other individuals interviewed during an inspection or at other stages of the proceedings are entitled to invoke the privilege against self-incrimination, if applicable.

In criminal and civil proceedings, both parties and witnesses enjoy the privilege against self-incrimination.

The attorney-client privilege (attorney’s obligation to observe professional secrecy) applies in all proceedings.

Multiple Proceedings on the Same Facts

It is possible that public enforcement proceedings before the OCCP, criminal proceedings against a cartelist’s manager or private enforcement proceedings based on the same facts take place independently, either simultaneously or at different times.

In addition, if more than one claimant files a civil action for damage caused by the same infringement, such civil cases may also take place separately. However, the Act on Damages specifies that one of the civil courts involved may request the others to refer all pending cases to it for joint examination. The summoned court is obliged to transfer the case unless it conflicts with the economy of the court proceedings. The parties must inform the court of any other pending or resolved actions for damages caused by the same cartel conduct. 

Sanctions

Under the current regime, the OCCP can impose a fine of up to 10% of the turnover generated by a cartelist in the financial year before the year in which the fine was imposed. The maximum statutory penalty for a manager who intentionally allowed the enterprise to breach competition law is PLN2,000,000. The precise amount of the fine imposed is at the discretion of the OCCP, which must consider both the aggravating and the attenuating circumstances of the particular breach.

In criminal proceedings against an enterprise (if applicable), a criminal court may impose a fine of between PLN1,000 and PLN5,000,000 but no more than 3% of the enterprise’s turnover.

Settling

It is not possible to enter into a settlement in proceedings before the OCCP. However, the statute provides for a quasi-settlement called “voluntary acceptance of the fine”. This is an expedited procedure which is only possible before the enforcement agency issues its decision. A reduction in the fine is granted in exchange for a “settlement” submission, in which the party voluntarily describes its participation in the infringement at hand and acknowledges its responsibility for that infringement. The reduction is 10% of what the fine would have been had it not been for the “settlement” submission. 

Such a “settlement” procedure is not submitted by parties too often. This is probably because the statute only provides for a maximum amount of the fine. The actual amount of the fine imposed is at the OCCP’s discretion, and the rules on the calculation of the fines are unclear. Therefore, a party can never be sure whether its “settlement‟ submission can, in fact, change anything.

A settlement is always possible in private enforcement proceedings at any stage, and it fully depends on the parties. There is little practical experience in this area as there are only a few such cases in Poland, and these are still pending.

In criminal cases, the suspect (at the stage of the investigation) and the defendant (before the court) are entitled to request a court order in which a penalty is imposed and negotiated between the court, public prosecutor and suspect/defendant.

Collateral Effects of Establishing Liability

The findings in a final OCCP decision or that of a final court decision issued in the review of the former are binding on courts reviewing civil actions as to the finding that a breach of competition law took place. 

Final orders of criminal courts in which the defendant was sentenced are also binding in civil proceedings with regard to the finding that a particular defendant committed the crime.

A cartelist may be banned from public tenders as a sanction in criminal proceedings.

None of the above can be avoided by plea bargaining or settlement.

Companies are not subject to criminal sanctions for cartel activities themselves. They may only be fined in criminal proceedings for the behaviour of their managers, which simultaneously constitutes a breach of competition law and a crime (which is rare). 

As for responsible managers, imprisonment of up to three years is provided for in Article 305 of the Polish Penal Code for bid rigging. In addition, any other punitive measure set out by the Penal Code may be applicable, depending on the facts of the case. Such measures include a ban on holding a specific position, performing a specific profession or conducting a particular business activity, forfeiture of financial gain, the obligation to compensate for the damage or exemplary damages.

Penalty and/or punitive measures are always specified by the panel of judges at their discretion, within limits set by the statute. OCCP has no standing in criminal proceedings. However, according to the draft bill, which is expected to amend Article 305 of the Penal Code, the co-operation of the defendants with the OCCP within the leniency programme will be an explicit mitigating circumstance influencing the punishment in criminal proceedings.

Anyone who suffered damage because of an infringement of competition law is entitled to monetary relief equal to the amount of the damage. The claimant has to prove the amount of damage. The order to make payment is issued by the panel of judges.

Cartelists and their managers are liable jointly and severally for both direct and passed-on damages. Under the specific requirements, small- and medium-sized enterprises that participated in a cartel are only liable to their own direct and indirect purchasers. 

A cease-and-desist order may be claimed if the cartel's conduct also constitutes an act of unfair competition.

Effective Compliance Programmes

There are no statutory rules on “effective compliance programmes”. If an enterprise has such a programme, it may be taken into account as a factor in reducing the amount of the fine imposed in the public enforcement procedure. The existence of such a programme may, eg, indicate that the breach of competition rules was not blameworthy. 

In criminal proceedings against the managers or sole proprietors, the existence of such a programme may be construed as a mitigating circumstance. Should it constitute evidence of a lack of guilt, there would be no crime.

Consumer Redress

There is no connection between the fine imposed in the governmental proceedings and the redress consumers may seek in private enforcement proceedings. The maximum fines that the OCCP can impose are set out in the statute. The compensation that a consumer may seek is equal to the damage caused through the infringement of the competition laws. 

Judicial Review

All decisions on the merits issued by the OCCP are appealable before the CCCP. If an appeal is filed, the case may be fully reviewed in terms of both the facts and the law in two instance civil proceedings. The court of the second instance is the Appellate Court in Warsaw. 

If the appeal is upheld:

• the case can be referred back for reconsideration by the OCCP; or
• the court may modify the OCCP’s decision, which includes a reduction of the fine imposed.

The courts may also uphold the OCCP’s decision.

The cassation appeal to the Supreme Court is also permitted in each public enforcement case. Such reviews are very common in Poland. The OCCP is the defendant in proceedings before the civil courts and the Supreme Court.

Civil Litigation

Private firms and or individuals may bring private actions in which they invoke a breach of competition law as an offensive or a defensive argument, accordingly. The suit can be filed with a civil court. The standards for relief in a private action for damages are even higher than those in governmental proceedings because the defendant will only be ordered to pay damages if the infringement of the competition rules was blameworthy. However, there is a rebuttable presumption that the cartelist’s behaviour was blameworthy. Therefore, the burden of proof that it was otherwise rests with the defendant. The only kind of relief that the plaintiff may seek is, in fact, monetary relief.

Multiple Plaintiffs

Civil actions for damages caused by cartel conduct may be class actions. Only a representative of the group of plaintiffs is permitted to file such an action. The representative may only be the group member or a county consumer rights ombudsman. The right of a non-governmental organisation to join the pending case is arguable.

Additionally, there is a general right in the civil procedure for several claimants to file an action together against one or more cartelists. Under general civil procedure rules, non-governmental organisations, the statutory tasks of which include protecting the market against competition law infringements or consumer protection, may, with the claimant’s consent, file an action on their behalf or join them in the pending action for damages. 

Direct and Indirect Damages

An indirect purchaser may claim damages suffered as a result of cartel conduct directly from the cartelists or their managers. The Act on Damages sets out the presumption, which only an indirect purchaser may invoke, that if the competition law infringement caused an undue burden on the direct purchaser and the indirect purchaser acquired goods or services from them, such an undue burden was passed on to the indirect purchaser. Other rules for actions brought by indirect purchasers are the same as those that apply to direct purchasers.

See 3.11 Use of Evidence Obtained From One Proceeding in Other Proceedings.

As far as we are aware, only a few actions for damages caused by the infringement of the competition law are currently pending in Poland. To our knowledge, no such case has been resolved to date. Each case is being reviewed by a different court, and no information is available on these cases in the public domain.

Attorney’s Fees

An attorney’s fee can be freely set by an agreement between the attorney and his client. There are no general rules on this. The party is responsible for paying the agreed fee to its counsel. Statutory regulations on civil proceedings provide for lump sum attorney’s fees that the unsuccessful party is ordered to pay to its opponent by the court. The amount of these lump sums, however, is linked to the value of the claim (the amount of damage) and has nothing to do with the remuneration agreed upon by and between the party and its attorney.

There are statutory regulations on costs which an unsuccessful party is obliged to pay to its opponent. They include lump sum attorney’s fees which depend on the value of the claim.

Private enforcement proceedings are two instance proceedings. If an appeal is filed, the case will be fully reviewed by an appellate court. Whether a cassation appeal to the Supreme Court is permitted depends on the value of the claim.

“One-Sided” Vertical Agreements

When investigating vertical agreements, the OCCP tends to treat only the supplier (the instigator of the agreement) as the party to the proceedings and the addressee of the decision issued. This (arguable) practise is against the rules of administrative procedure. It causes the other alleged participants to the agreement are deprived of their right to defence, as they are not parties to the proceedings. Moreover, from the competition law perspective the decisions do not properly identify agreements and participants to such agreements. It is because they only indicate that a given identified supplier conducted an agreement with an unidentified group of “distributors”. This legally questionable approach may have detrimental effects for private enforcement proceedings. Although the final OCCP’s decision are formally binding on civil courts, they may have problems with referring to the OCCP′s decisions not properly identifying agreements and participants to such agreements.

Numerous guides are issued by the Polish enforcement agency, available via its website.