On 20 May 2023 important changes to the competition 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.
The changes are extensive. Some of the amendments apply to the rules on conducting searches and inspections in clients’ premises upon the request of the President of the Polish Antimonopoly Authority (UOKiK).
New rules give more power to UOKiK and enable them to collect evidence in a broader scope.
The amendments to the procedure of conducting searches and inspections are as follows:
- under the new law, the UOKiK’s inspectors are allowed to conduct searches on private premises (home rides), if they obtain consent from the Competition Court. Under the old rules, such searches could only be performed by the police at UOKiK’s request;
- under the new rules, in some cases, searches can be caried out even after the entrepreneur's “working hours”. Previously, the UOKiK’s inspectors had to adjust searches to normal business hours;
- under the new rules, representatives of the UOKiK are allowed to take away the evidence collected at clients’ premises and to analyze it at the UOKiK if it is required to speed up the proceedings. Previously, the analysis of evidence outside client’s premises was not allowed;
- new rules on penalties have been introduced; if the client is preventing or obstructing the inspections or searches a fine of up to 3% of the entrepreneur’s turnover in the previous financial year can be imposed;
- new rules on the legal professional privilege have been introduced; when it comes to inspections, clients are better off with an external counsel because all written communications between the managers and their lawyers and all documents prepared by lawyers, related to antitrust case, will remain confidential and the antimonopoly authorities will not be able to use it only if these documents and communication come from external lawyers.
In the light of the recent changes to the competition law, clients should make sure they are well prepared for the anticipated dawn raids by recalling a few simple tips:
- Involve EEA-qualified external lawyers as soon as possible regarding (anticipated) antitrust proceedings. 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 (in inspections only if these documents and communication come from external lawyers).
- Prepare the operational instruction on how to behave during the dawn raid.
- Put together the team which will handle the anticipated dawn raid and make sure they are familiar with the operational instruction on how to behave during the dawn raid.
- Circulate privileged documents and communications on a “need to know” basis only.
- Discuss sensitive information on the phone or in person only. There is no need to create too many documents.
- Make sure that UOKiK’s representatives are taken to the separate room where they wait until a member of the management board or other representative arrives to accept the authorization documents.
7. Answer questions asked by UOKiK’s representatives to the point, honestly and truthfully. It is best to make sure that a lawyer or at least another employee is present during the hearing.
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