POLAND Trends and Developments Contributed by: Sabina Famirska, Hansberry Tomkiel
the market is very low. Such a situation may give an entrepreneur in a dominant position the opportunity to close access to the market by setting dispropor - tionately long and inadequate periods during which a highly qualified employee or group of employees will not be able to take up employment with a competitor attempting to enter the market. According to the PCA’s guide, agreements between self-employed individuals will also not be a priority for the authority. Formally speaking, persons conducting sole proprietorship are entrepreneurs within the mean - ing of competition law, and agreements between such persons may be considered agreements between competitors. At the same time, in the opinion of the PCA, such persons may find themselves in a situa - tion where they consider it necessary to co-ordinate their actions vis-à-vis a contractor in order to protect their rights in a similar way to employees joining trade unions. This type of co-ordination is described in the “Guidelines on applying EU competition law to collec - tive agreements regarding the working conditions of solo self-employed persons” of 30 September 2022. The PCA announced that it intends to apply similar rules for assessing such agreements. Another type of permitted agreement that is unlikely to be targeted by the PCA are agreements concern - ing employee remuneration or non-competition for employees in connection with co-operation agree - ments among entrepreneurs. These are considered permissible in exceptional circumstances. This is because such agreements are ancillary to the legal undertaking of the joint entrepreneurs. If competi - tors decide to co-operate within the framework of competition law, they may consider it necessary to stipulate that employees participating in a joint project will not be recruited by a competitor after the project is completed. Such arrangements require individual legal analysis in terms of their necessity and close connection with the legal undertaking undertaken by entrepreneurs. The same applies to lobbying activities. As a rule, employers or employers’ associations jointly present - ing positions and agreeing on actions vis-à-vis state authorities regarding the minimum wage or labour
code regulations will not trigger the interest of the PCA. Regulations on unfair competition In the case of certain types of employee agreements (eg, no-poach agreements), one may observe a poten - tial conflict between antitrust regulations and regula - tions on combating unfair competition. The general clause in Article 3 of the Act on Combating Unfair Competition prohibits actions that violate or threaten the interests of another entrepreneur and such actions include practices aimed at poaching employees. According to Article 12 of the Act on Combating Unfair Competition, an act of unfair competition is persuad - ing a person who performs work for an entrepreneur ‒ on the basis of an employment relationship or other legal relationship ‒ to not perform or to improperly per - form their employee obligations or other contractual obligations (eg, a non-compete clause binding on the employee or a contractor). It is also an act of unfair competition to induce the entrepreneur’s custom - ers or other persons to terminate their employment or co-operation contract with the entrepreneur or to fail to perform or to improperly perform such a con - tract. These are known as non-soliciting prohibitions. In light of these provisions, inducing an employee to terminate their contract with their current employer and take up employment with another employer may be found to be an illegal act of unfair competition. In its official guide, the PCA did not comment on the above-mentioned interaction between the Com - petition Act and the Unfair Competition Act, nor on the non-solicitation clauses often found in employ - ment-type contracts (ie, the prohibition on poaching employees after the termination of a co-operation). Formally speaking, these are clauses that ‒ like typi - cal no-poach agreements ‒ may result in limiting an employee’s opportunities to change an employer or a contractor or may contribute to a market closure effect. Yet, as with non-compete clauses, it appears that the bottom line is whether the restriction on employees moving to competing companies is the result of an illegal agreement ‒ even an informal one ‒ between employers competing on the market or the result of independent behaviour by entrepreneurs using
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