POLAND Law and Practice Contributed by: Tomasz Młodawski, Krzysztof Cichocki, Łukasz Wyszomirski and Krzysztof Fasula, Sołtysiński Kawecki & Szlęzak
• review mergers and acquisitions meeting statutory turnover thresholds; • prohibit concentrations that would significantly impede competition; and • investigate abuses of dominant position. Infringements may result in fines of up to 10% of the undertaking’s annual turnover. The President of ERO exercises sector-specific regulatory oversight and co- operates with UOKiK in matters concerning competi- tion in the electricity market. The Polish electricity market remains relatively con- centrated. The principal state-controlled energy groups (PGE, Tauron, Enea and Orlen, including Energa) collectively account for a substantial share of generation capacity and retail supply. Nevertheless, the coal phase-out and the continued growth of inde- pendent renewable energy producers and electricity traders is gradually increasing market diversification. 2.5 Surveillance to Detect Anti-Competitive Behaviour Anti-competitive behaviour in the Polish electricity market is subject to oversight at multiple levels: • by UOKiK under the general competition law framework described in 2.4 Market Concentration Limits ; • by the President of ERO under the Energy Law; and • in respect of wholesale market conduct, under REMIT. The President of ERO is appointed under Polish law to monitor and enforce most of the REMIT obligations, except for market manipulation and insider trading, which are qualified in Poland as criminal offences and prosecuted under the criminal law by the competent prosecutors. Enforcement by the President of ERO The President of ERO has powers to monitor the electricity market, oversee compliance with the Ener- gy Law and licence conditions, and impose admin- istrative financial penalties. The President of ERO is responsible for monitoring wholesale energy markets for compliance with the prohibitions on market manip-
ulation and insider trading. Market participants are required to register in the CEREMP system and report the trades on wholesale energy products to the ARIS system through Registered Reporting Mechanisms. The President of ERO may require the production of documents and information, and may co-operate with ACER and the national regulatory authorities of other EU member states in cross-border investigations. Breaches of REMIT and the Energy Law may result in significant administrative financial penalties. Enforcement by the President of UOKiK As noted in 2.4 Market Concentration Limits , the President of UOKiK enforces the prohibitions on anti-competitive agreements and abuse of dominant position applicable to the electricity sector. In addition to imposing fines of up to 10% of an undertaking’s annual turnover, the President of UOKiK may con- duct investigations, carry out unannounced inspec- tions, request access to documents and data, and impose interim measures. A settlement procedure and leniency programme are available for undertakings co-operating with the investigation. The European Commission retains parallel jurisdiction in respect of conduct affecting trade between EU member states. Co-Ordination The President of ERO and the President of UOKiK co- operate in matters concerning competition and mar- ket integrity within the electricity sector, and may refer matters between themselves where conduct raises issues under both the Energy Law and the general competition law framework. 3. Generation Facilities 3.1 Constructing and Operating Generation Facilities The construction and operation of electricity genera- tion facilities in Poland is governed by a number of sectoral and cross-cutting statutes. The principal instruments are: • the 1997 Energy Law (licensing and network regu- lation); • the 2015 Renewable Energy Sources Act (support schemes and regulation of renewable installations);
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