Poland: Poland Implements The ECN+ Directive, And Much More

On 20 May 2023, the amendment to the Polish Act on Competition and Consumers Protection (the "Amendment") will enter into force. The main aim of the amendment is to transpose Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to authorise the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (the "ECN+").

Indeed, the amendment follows the ECN+ stipulations by introducing several changes to the existing public enforcement regime and powers of the Polish Competition Authority (the "PCA"). These include, in particular, the leniency programme, framework for intra-EU cooperation and liability of business associations.

By relying on the EU competition law concept of "undertaking", the amendment also tightens up the liability for antitrust infringements, namely:

• 10% cap (maximum fine) will be calculated as the aggregate turnover of group companies – so far this used to be calculated by reference to the unit turnover of the party to the antitrust proceedings,
• the introduction of statutory parental liability of the companies "exercising decisive influence" on the infringer.

From the procedural perspective, the removal of the statement of objections as the document presented to the party before the closure of antitrust proceedings is noteworthy. Instead, the objections would be presented at the beginning of the antitrust proceedings.

In terms of the institutional independence, the Prime Minister will maintain his power to appoint the head of the PCA, but he will no longer be able to freely revoke such person – instead the head of the PCA would be appointed for five years with the possibility of being re-appointed once. The head of the PCA's term of office would be five years (with the possibility of being re-appointed once). By virtue of law, the current head of the PCA will commence his first term of office at the day the amendment enters into force.

Further, the amendment goes beyond the ECN+ scope by introducing the following:

• the parental liability for anticompetitive agreements (in particular cartels) would also include the managers of the companies exercising the "decisive influence",
• legal professional privilege – the amendment specifies that only correspondence with an "independent" lawyer which had been drafted exclusively for the purpose of the inspected entity exercising the legal protection in relation to the subject of proceedings within which the inspection is conducted,
• the procedure of obtaining judicial authorization for inspection has been regulated,
• the inspection might be continued in the premises of the PCA (the inspected entity would retain the right to be present) – in practice this would include browsing digital copies of the evidence collected at the company's premises,
• the maximum procedural fine (imposed for, e.g. obstructing the inspection, furnishing misleading information to the PCA) of EUR 50 million would be replaced with 3% of the annual turnover,
• maximum daily fine of EUR 10,000 – imposable for such infringements as non-compliance with the commitment decision – would be replaced by 5% of daily turnover.