On 20 May 2023 important changes to the Competition and Consumer Protection Law in Poland entered into force as a result of implementation of ECN+ directive. The changes implement into the Polish legal framework the EU directive to empower the competition authorities of the Member States to be more effective enforcers of competition law.
Key amendments of the Polish competition law are as follows:
1. Parent company can also be held liable for its subsidiary’s infringements of competition law
Up until recently, fines of up to 10 % of annual turnover for infringements of competition law could have been imposed by a Polish competition authority on a direct infringer. Additionally, the management of the infringer could also have been held liable for infringements of competition law. The competition authority could impose a fine of up to PLN 2 million for intentionally allowing an infringement of competition law to be committed.
According to the new rules, if the infringement of competition law is committed by a Polish subsidiary, then the Polish competition authority may impose a fine of up to 10% on the direct infringer but also – a fine can be imposed on its parent company. In addition, the management of the parent company can also be held liable for infringements of competition law. The Polish competition authority can impose a fine of up to PLN 2 million to a foreign management for intentionally allowing an infringement of competition law to be committed.
According to the new law, competition law is deemed to be infringed by the parent company if it "exercises a decisive influence" on the direct infringer. At the same time, a presumption of exercising a decisive influence has been introduced where the parent company’s share in the subsidiary’s capital exceeds 90%.
A number of modifications have also been made to other penalties. For example, the maximum penalty imposed on business associations has been significantly increased - under the new regulations, a fine of up to 10% of the total turnover of the members of the association can be imposed, and they will assume responsibility for paying it.
2. Inspection and search procedure
Numerous changes concerning the inspection and search procedure, including the possibility of UOKiK’s inspectors conducting searches on private premises directly, with the consent of the court (before, such searches could only be performed by the police at UOKiK’s request) have been made. Additionally, the new law provides for the possibility of lodging a complaint against the court’s decision to consent to a search (its acceptance means that the President of UOKiK will not be allowed to use the evidence gathered during a search).
The amendment also introduced changes to legal professional privilege (LPP). If, during the inspection, an entrepreneur states that letters or documents disclosed by the UOKiK contain correspondence with an external lawyer, or have been drawn up for the purpose of realizing the right of the entrepreneur to obtain legal defense from such a lawyer, in connection with the UOKiK’s proceedings, the inspectors will be required to skip these letters or documents. At the same time, inspectors will be allowed to take a "cursory look" at such document in order to determine the author, addressee, title and subject of such document or the day on which it was drawn up.
3. Key other changes
Other significant changes includes among others:
i) modification to the leniency procedure, with a clarification of the scope of "cooperation" with the President of UOKiK which the leniency applicant is obliged to undertake.
ii) introduction of a 5-year mandate of office for the President of the UOKiK, with the possibility of serving 2 terms;
iii) suspension of the statute of limitations for competition law violations for the duration of the proceedings.