POLAND Law and Practice Contributed by: Agnieszka Janicka and Krzysztof Hajdamowicz, Clifford Chance
Sanctions The PCA may impose a fine on an undertaking tak - ing part in a concentration (only on the buyer in the case of the acquisition of control and/or assets) of up to 10% of its turnover for a breach of the standstill obligation or failure to notify the transaction. The PCA may also impose a fine of up to 50 times the average wage in Poland on managers who have failed to give notification of an intended concentration. 6.3 Cartels Like EU competition law, the Polish Act on Competi - tion and Consumer Protection prohibits agreements/ concerted practices between undertakings (or asso - ciations of undertakings) that have as their object or effect the elimination, restriction or other infringement of competition (Article 6). The non-exhaustive statu - tory list of infringements includes the following in par - ticular: • price fixing; • limiting or controlling production/sales/invest - ments; • market sharing; • imposing onerous/discriminatory contract terms; • restricting access to the market; and • collusive tendering (between tender participants or with the awarding entity). The PCA also has the right to apply EU competition law directly (Article 101 of the TFEU) if the infringe - ment affects trade between EU member states. The PCA may impose a fine on undertakings and individuals for involvement in anti-competitive agree - ments. An undertaking may be fined up to 10% of the turnover of the entire capital group generated in the year preceding the year the fine is imposed. The PCA may also impose a fine of up to PLN2 million on managers who allow the undertaking to conclude a prohibited anti-competitive agreement through their deliberate actions or omissions (except in the case of bid-rigging). Under Polish law, leniency (immunity or reduction of a fine) is available for both horizontal and vertical agree - ments.
An agreement that violates competition law is invalid in its entirety or in the anti-competitive part. The PCA may also enforce abandonment of the practice, or order the offending undertaking to remedy its effects. 6.4 Abuse of Dominant Position Like EU competition law, the Polish Act on Competi - tion and Consumer Protection prohibits abuse of a dominant position within a relevant market (Article 9). The abuse may consist of the following in particular: • imposing unfair prices or trading conditions; • limiting production, market sale or technical devel - opment; • applying onerous/discriminatory contract terms to third parties; • preventing the development of competition; and • market sharing. A dominant position is held by an undertaking if it is able to prevent effective competition in the relevant market and to act independently of competitors, con - tracting parties and consumers to a significant degree. In Poland, there is a presumption of a dominant posi - tion if an undertaking has a market share exceeding 40%. However, this presumption may be challenged by the undertaking involved. The PCA may impose a fine for abuse of a dominant position only on undertakings (not individuals), which are liable to a fine of up to 10% of the turnover of the entire capital group generated in the year preceding the year in which the fine is imposed. Any legal transactions that constitute abuse of a dom - inant position are invalid in their entirety or in the rel - evant part. The PCA may also enforce abandonment of the practice, or order the offending undertaking to remedy its effects. Significant amendments to the Polish competition law (implementing the ECN+ Directive) came into force on 20 May 2023, relating in particular to the leniency programme, liability for infringement (introduction of parental liability), levels and methods of the calcula - tion of fines, the dawn raids procedure, legal profes - sional privilege and international co-operation of the PCA with other national competition authorities.
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