Antitrust Private Enforcement – Case of Poland

This article presents the main difficulties surrounding private enforcement of antitrust law in Poland, currently the key implementation problem in the field of antitrust law. Whereas the basic standards concerning the public pillar of antitrust enforcement have already been established, either in the European Community (EC) or in its Member States, the private pillar of antitrust enforcement has not yet been fully developed. The fact that private enforcement of antitrust law is possible, and in fact equal, to public enforcement is not yet commonly recognized. In response to the European Commission’s White Paper on Damages actions for breach of the EC antitrust rules, private enforcement of antirust law is presently under intense discussion in EC Member States. This article should be considered as one of the contributions to this debate. It presents the main legal framework of private enforcement of antitrust law in Poland. In order to do so, it directly refers to the Polish Act on competition and consumer protection, the Civil Code and the Civil Procedure Code. This article also discusses Polish case law in this area. It aims to assess whether existing Polish legal provisions are, in fact, sufficient to ensure effective private enforcement of Polish as well as EC antitrust law. The article refers to the main proposals of the European Commission’s White Paper. It is concluded that private enforcement of antitrust law is indeed possible in Poland on the basis of currently applicable procedural rules, even if there are no special instruments designed to facilitate it. However, it cannot be expect that in the current legal climate, private parties will eagerly and frequently apply for damages in cases of a breach of Polish antitrust law. Antitrust cases are special in many aspects and, thus, they require specific solutions in procedural terms. This article aims to pinpoint those areas, where the Polish law needs to be changed in order to develop and promote private enforcement of antitrust law in Poland.private and public enforcement, private parties, antitrust damages, court proceedings, collective redress, damage actions

Key Legislative and Jurisprudential Developments of Polish Antitrust Law in 2011

The article presents key developments in Polish antitrust legislation and jurisprudence of 2011. Its legislative part focuses on the renewal of Polish Group Exemption Regulations for vertical agreements, specialization and R&D agreements as well as cooperation agreements in the insurance sector. Noted is also the sole amendment of the Competition Act introduced in 2011 which concerns the financial liability of the Polish competition authority. The article covers also the new Guidelines of the UOKiK President on the criteria and procedures of merger notifications. Presented in its jurisprudential part is a number of 2011 rulings, mainly those rendered by the Supreme Court and the Court of Appeals, divided according to their subject matter with respect to particular types of restrictive practices and other problems related to the decision-making process of the UOKiK President

Antitrust Damage Claims: A View From Efta Court

Articles 101 and 102 TFEU have become a pattern for competition rules provided in Articles 53 and 54 of the EEA Agreement, which entered into force on 1 January 1994. Both EU competition law and EEA competition law can be enforced before national courts. Lodging damage claims in the EU was facilitated by Directive 2014/104/EU. The so-called Antitrust Damages Directive was highly inspired by the jurisprudence of the Court of Justice of the European Union. Although Directive 2014/104/EU has not been incorporated into the EEA law, damage claims resulting from violations of EEA competition rules are judged by national courts in the EEA Member States, which is why some aspects of private enforcement of competition law have become a point of interest for the EFTA Court, being – together with the Court of Justice of the European Union – the EEA court. Firstly, the article aims at checking if the EFTA Court jurisprudence on antitrust damage claims follows the guidelines formulated in the case law of the Court of Justice. Since the positive answer to this question is highly probable, secondly, the article aims at identifying the extent of the impact of EU jurisprudence in private enforcement cases on judgments of the EFTA Court. The article concludes that the EFTA Court’s activities regarding antitrust damage claims follow the route indicated by the Court of Justice of the European Union. Four identified judgments regarding – directly or indirectly – antitrust damage claims (Nye Kystlink, Fjarskipti, Schenker I and Schenker V), delivered by the EFTA Court, seem to strengthen its position as an institution that is able to guarantee a coherence between EEA and EU competition law. EFTA Court’s judgments in private enforcement cases are also a point of interest and reference for EU Advocates General and can become an inspiration for both EU and national case law

Mind the Gap! ECN+ Directive Proposal on its Way to Eliminate Deficiencies of Regulation 1/2003: Polish Perspective

This article aims at answering the question whether the Commission’s proposal intended to empower Member States’ competition authorities to be more effective enforcers (ECN+ Directive) actually brings effective solutions to all weaknesses of Regulation 1/2003, which influenced an inefficient application of Articles 101 and 102 TFEU in some Member States (among them Poland, which will be taken as a point of reference). The first part of the article constitutes a review upon the application of Regulation 1/2003 in Poland. Interestingly, the beginning of its enforcement coincides with the total period of application of EU law in Poland, since the country joined the EU on the same day the Regulation entered into force. The problem with Regulation 1/2003 is that it does not seem to enhance the enforcement of the Community’s competition rules by national enforcers, including NCAs and courts. The reason for this failure lies inter alia in the deficiencies of the principles adopted in the Regulation itself, including a lack of procedural unification (or at least some harmonisation) in cases where European substantive law is to be applied. In the second part of the article, the content of the Commission’s proposal on ECN+ Directive is analysed in order to find whether new regulations are able to solve problems identified in the Polish application of the Treaty’s provisions. The article concludes with an overall assessment of the proposed Directive and a list of conditions for effective implementation of the Directive

Competition authority in a trap? A few (bitter) words on making public policy by counteracting an unfair use of a contractual advantage in agri-food sector in Poland

A problem of counteracting bargaining powers of retailers, specially in agri-food sector, has been recently addressed by regulations in a few European countries but so far it has not been subject to academic considerations.A paper aims at finding rationales of granting administrative bodies with competences of interfering in contractual relationships between market players in reference to an abuse or misuse of bargaining power and to assess a possibility and probability of balancing public and private interests by administrative bodies applying regulations on counteracting an unfair use of a bargaining power. A point of reference for considerations is a Polish regulation dated from December 2016 - Act on Counteracting the Unfair Use of Contractual Advantage in the Trade in Agricultural and Food Products.In a lack of relevant case law a paper is based on a descriptive method of research as well as a method of conceptual analysis.A paper contests a correctness and rationality of selecting a competition authority as an enforcer of a discussed regulation. A competition authority seems to be caught in a trap of opposite (public and private) interests - an antitrust authority shall undertake an intervention in an interest of a private entity which in many situations may be seen as an intervention against public interest.A paper contributes to an ongoing discussion on EU's proposals for actions on eliminating imbalances between big retailing networks and food suppliers

The trace fossil Lepidenteron lewesiensis (Mantell, 1822) from the Upper Cretaceous of southern Poland

Lepidenteron lewesiensis (Mantell, 1822) is an unbranched trace fossil lined with small fish scales and bones, without a constructed wall. It is characteristic of the Upper Cretaceous epicontinental, mostly marly sediments in Europe. In the Miechów Segment of the Szczecin-Miechów Synclinorium in southern Poland, it occurs in the Upper Campanian–Lower Maastrichtian deeper shelf sediments, which were deposited below wave base and are characterized by total bioturbation and a trace fossil assemblage comprising Planolites, Palaeophycus, Thalassinoides , Trichichnus, Phycosiphon, Zoophycos and Helicodromites that is typical of the transition from the distal Cruziana to the Zoophycos ichnofacies. L. lewesiensis was produced by a burrowing predator or scavenger of fishes. The tracemaker candidates could be eunicid polychaetes or anguillid fishes

Taphonomic differentiation of Oxfordian ammonites from the Cracow Upland, Poland

Taphonomic analysis of Lower and Middle Oxfordian ammonites from the Cracow Upland, southern Poland (localities at Podłęże, Zalas, Młynka) revealed differences in ammonite preservation. The studied ammonites, usually termed as external and internal moulds, show a more complex state of preservation. In the Middle Oxfordian glauconitic marls, ammonites are preserved as internal moulds with neomorphic calcite shells showing relics of the original internal structure. In the Middle Oxfordian platy peloidal limestones, ammonites are preserved mostly as external moulds, without septal suture, however under microscope might show relics of internal whorls and septa and/or subtle differences in sediment filling phragmocone chambers. In sponge–microbial bioherms and biostromes, ammonite internal moulds have shells, which in contrast to ammonites from glauconitic marls are not strictly neomorphic ones, but originated by shell dissolution and subsequent filling of moldic porosity by calcite cement. In sponge–microbial nodular limestones, the ammonites are strongly deformed and the outer wall is usually removed by dissolution under pressure. Other important taphonomic differences include the rate of compaction (highest in platy limestones), sedimentary infillings, microborings, encrustations and preservation of siphuncular tubes. The majority of the ammonites appear to be phragmocones; aptychi in all facies are rare. Siphuncular tubes are fossilized exclusively in oppeliids, only in specimens from glauconitic marls and platy limestones, although their other taphonomic attributes are different. Tubes seem to have fossilized due to microbially mediated phosphatization that could be favoured by a set of parameters which operated rather at the scale of ammonoid carcasses: closed, poorly oxygenated conditions, and reduced pH. Taphonomic processes were controlled by the sedimentary environment (fragmentation, sedimentary filling, phosphatization of siphuncular tubes), as well as by early and late diagenesis (neomorphic transformation, dissolution, cementation, compaction) influenced by lithology

Occurrence and paleoecological significance of lyssacinosid sponges in the Upper Cretaceous deposits of southern Poland

Cretaceous lyssacinosid sponges (Hexactinellida) are rare and poorly recognized. This is the first description of lyssacinosid sponges from the Cretaceous of Poland. The sponges (including six species and three types of root tufts) come from the Upper Turonian-Lower Coniacian of the Opole Trough, Upper Campanian of the Miechów synclinorium, and Upper Campanian of the SE part of the border synclinorium. All localities lie southwards of the previous reports, widening thus the paleogeographic distribution of the group within the North European Province. Cretaceous lyssacinosids seem to be a useful tool in paleoecological interpretations. The presence of thin-walled lyssacinosids with root tufts indicates a soft substrate, slow rate of sedimentation, and calm and deeper water conditions

Antitrust Private Enforcement – Case of Poland

This article presents the main difficulties surrounding private enforcement of antitrust law in Poland, currently the key implementation problem in the field of antitrust law. Whereas the basic standards concerning the public pillar of antitrust enforcement have already been established, either in the European Community (EC) or in its Member States, the private pillar of antitrust enforcement has not yet been fully developed. The fact that private enforcement of antitrust law is possible, and in fact equal, to public enforcement is not yet commonly recognized. In response to the European Commission’s White Paper on Damages actions for breach of the EC antitrust rules, private enforcement of antirust law is presently under intense discussion in EC Member States. This article should be considered as one of the contributions to this debate. It presents the main legal framework of private enforcement of antitrust law in Poland. In order to do so, it directly refers to the Polish Act on competition and consumer protection, the Civil Code and the Civil Procedure Code. This article also discusses Polish case law in this area. It aims to assess whether existing Polish legal provisions are, in fact, sufficient to ensure effective private enforcement of Polish as well as EC antitrust law. The article refers to the main proposals of the European Commission’s White Paper. It is concluded that private enforcement of antitrust law is indeed possible in Poland on the basis of currently applicable procedural rules, even if there are no special instruments designed to facilitate it. However, it cannot be expect that in the current legal climate, private parties will eagerly and frequently apply for damages in cases of a breach of Polish antitrust law. Antitrust cases are special in many aspects and, thus, they require specific solutions in procedural terms. This article aims to pinpoint those areas, where the Polish law needs to be changed in order to develop and promote private enforcement of antitrust law in Poland