An act seeking to strengthen the position of private claimants seeking damages for violation of competition law entered into force in Poland on 27 June 2017. A wave of articles have washed through the legal and business press with nearly identical titles stressing that it will be easier to win damages for losses caused by anticompetitive arrangements. But is that really the case? It will certainly be easier to try.
The idea of using whistleblowers to uncover and combat anticompetitive arrangements is spreading ever wider. Recently the European Commission announced introduction of such a tool.
The Polish competition authority openly admits that its resources, particularly its people, are inadequate to achieve satisfactory results at uncovering cartels, and the leniency programme has not generated the hoped-for effects. The proposed solution is to reward whistleblowers.
The potential fine for carrying out a concentration without obtaining the required approval of the president of the Office of Competition and Consumer Protection (UOKiK) is up to 10% of the annual turnover of the enterprise, even if the failure was not wilful. A manager or board member who fails to make a required notification may have to pay as much as PLN 200,000. But what circumstances does the competition authority consider when determining the amount of the fine?
Creation of a joint venture by competitors, or obtaining joint control over a competing company through acquisition of its shares, may give rise to significant antitrust risks. Obtaining approval for the transaction from the competition authority may not ensure legal safety when competitors intend to pursue joint business initiatives.
In the EU system of antitrust law, the European Commission and the member states are autonomous in their application of leniency programmes. The soft harmonisation via the European Competition Network’s Model Leniency Programme is not binding on national competition authorities.