POLAND Trends and Developments Contributed by: Sabina Famirska, Hansberry Tomkiel
Permitted practices Wage-fixing agreements and no-poach agreements are only a small part of a wide range of employee- related issues that could potentially raise antitrust concerns. However, not all of them are targeted by the PCA. One example the PCA’s guide lists of a common per - mitted practice in the labour market are non-compete clauses, which are frequently found in employment contracts. These are clauses prohibiting an employ - ee from taking up employment with a competitor of their current employer after the termination of their employment relationship or prohibiting the employee from performing tasks for other entities during their employment. To the extent that such prohibitions are introduced into employment contracts as a result of unilateral actions by an entrepreneur (ie, they are not agreed with other entrepreneurs), they remain outside the scrutiny of the PCA. In such a situation, they do not constitute an agreement between (at least two) entrepreneurs but only between the entrepreneur and the employee. The same rule applies if prohibitions of this kind are included in contracts with persons who are employees within the meaning of competition law but who formal - ly operate as sole traders. This is because non-com - petition clauses in such an arrangement play a similar role to that in a classic employment relationship. If a non-competition clause is included, for example, by a software manufacturer in a contract with a ser - vice recipient who runs a sole proprietorship but in practice (for the purposes of competition law) acts as an employee, such non-competition clause does not necessarily violate competition law. As a rule, such provisions should not trigger the atten - tion of the PCA, with one exception ‒ namely, in the case of entities enjoying dominant position, the PCA may analyse whether the use of non-compete clauses amounts to an abuse of a dominant position. Intro - ducing non-compete clauses may aim to eliminate or prevent competitors from entering the market as the monopolist tries to “cement” the market. The PCA’s attention can be expected, in particular, in situations where activity in a given market depends on access to highly qualified staff and the supply of which in
PZM) and Ekstraliga Żużlowa ‒ organisations respon - sible for organising speedway racing in Poland. These organisations manage speedway competitions at the highest league level and at lower levels. The contested practice consisted of adopting speedway competition rules that set maximum remuneration rates that sports clubs participating in speedway league competitions could pay to players. The restrictions were introduced in 2013 and applied from the 2014 season onwards. As a result of the regulations, none of the clubs in the Ekstraliga and other speedway leagues could offer a player remuneration above a predetermined amount. Both PCA decisions have been appealed and are not yet final. The Biedronka case An example of a no-poach agreement is the afore - mentioned case of an alleged agreement involving Poland’s leading food retail chain, Biedronka, and transport companies providing services to that chain. According to media reports, transport companies pro - viding services to the chain may have entered into an agreement not to compete with each other for employees, and such arrangements may have been co-ordinated by Biedronka. The carriers were to agree among themselves on anti- competitive practices in specific distribution centres and the Biedronka chain was to co-ordinate these agreements in centres throughout Poland and super - vise compliance with the arrangements ‒ for example, by blocking access to its premises for drivers who wanted to change employers without agreement. The entrepreneurs could agree that if drivers previously employed by a carrier serving a given Biedronka dis - tribution centre wanted to be employed by another transport company, they would not be allowed to work for the new employer for a certain period (usually three months). From the perspective of transport companies, such a practice would minimise the risk of losing an employ - ee to a competitor, but it would limit drivers’ profes - sional mobility and prospects for higher pay. Accord - ing to the PCA’s official statements, the results of the contested practices could be a lack of flexibility for drivers to change jobs, as well as a slowdown in the growth of their wages.
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