There are many steps a company can take to minimize the risk associated with the antimonopoly proceedings which could be started in Poland by antimonopoly authorities. One of the measures worth considering is whether to hire an external counsel or in-house lawyers.
The general view is that while external counsel are better able to take advantage of precedents and resources available within a law firm, in-house lawyers have a much better grasp of the unique needs of the business team, the internal politics and the trends in the industry at levels beyond just the legal considerations.
In Poland, when it comes to antimonopoly proceedings, the companies will be better off with an external counsel because all written communications between the managers and their lawyers and all documents prepared by lawyers will remain confidential and the antimonopoly authorities will not be able to use it only if these documents and communication come from external lawyers.
The legal professional privilege in Poland refers only to independent lawyers. It does not include in-house lawyers, meaning that all letters and legal opinions prepared by internal lawyers can be used by the antimonopoly authorities against the inspected entity. This is an important factor.
It should be remembered that competition law is not only a concern for big companies - smaller firms and even charities have been among the recent targets of the Polish Antimonopoly Authority (UOKiK) and the European Commission investigations, with the prospect of fines of up to 10 percent of turnover where infringements are discovered.
On 20 May 2023 important changes to the competition law in Poland entered into force as a result of implementation of Directive (EU) 2019/1 of the European Parliament and of the Council (EU) of 11 December 2018 aimed at empowering the competition authorities of the Member States to enforce the law more effectively.
The amendments also affected legal professional privilege in the field of competition law. According to the new rules, if, during an inspection, the inspected entity declares that:
- letters or documents disclosed during the inspection contain written communications between the inspected entity and an independent legal counsel or attorney at law from Poland or other EU country which relate to the inspected entity’s right to obtain legal advice on the proceedings, conducted by the President of UOKiK, during which the inspection takes place, and/or
- such letters or documents were drawn up exclusively to enable the inspected entity to obtain legal advice from an aforementioned lawyer on the proceedings conducted by the President of UOKiK, during which the inspection takes place,
the inspectors will be obliged to leave such letters or documents at the inspection location. The inspectors will merely be entitled to take a "cursory look" at such documents in order to determine the author, addressee, title and subject matter of the letter or document and its preparation or the day on which it was drawn up.
Under the old rules, there was no sufficient protection in relation to the written communications between the inspected entity and their lawyers. That was criticized in case law. The Polish Court of Competition Protection ruled in Polska Press case that the inability to rely on legal professional privilege for inspections is inappropriate and deprives the companies from the right to defend themselves.
The new rules do not provide the same level of protection of documents and correspondence exchanged by a company with its in-house lawyers. Therefore, if there is any threat of antimonopoly proceedings being initiated at the national or EU level, a company should hire an external law firm to handle the case otherwise all written communications between the company and its lawyers will be used by the authorities against the inspected company.
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