POLAND Law and Practice Contributed by: Agnieszka Janicka and Krzysztof Hajdamowicz, Clifford Chance
proposed commitments (remedies) – eg, divest - ment. Sanctions The PCA may impose a fine on an undertaking taking part in a concentration (in the case of the acquisition of control and/or assets – only on the buyer) 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 individuals from the management who have failed to give notification of an intended concen - tration. 6.3 Cartels Like EU competition law, the Polish Act on Competition and Consumer Protection prohib - its agreements/concerted practices between undertakings (or associations of undertakings) that have as their object or effect the elimination, restriction or other infringement of competition (Article 6). The non-exhaustive statutory list of infringements includes the following in particu - lar: • 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 partici - pants or with the awarding entity). The PCA also has the right to apply EU competi - tion law directly (Article 101 of the TFEU) if the infringement affects trade between EU member states.
The PCA may impose a fine on undertakings and individuals for involvement in anti-competitive agreements. 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 management 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 reduc - tion of a fine) is available for both horizontal and vertical agreements. 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 Competition 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 development; • 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, contracting parties and consum -
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