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Polish Competition Law in the 1990s — on the Way to Higher Effectiveness and Deeper Conformity with EC Competition Rules

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References

  1. See Mestmäcker, “Systemtransformation im Spiegel der Rechtstheorie”, in: Drobing/ Hopt/ Kötz/ Mestmäcker, Systemtransformation in Mittel- und Osteuropa und ihre Folgen für Banken, Börsen und Kreditsicherheiten (Tübingen: Mohr Siebeck 1998) 89 et seq.

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  2. Constitution of the Republic of Poland of 2 April 1997 (Journal of Laws No. 78, item 48). It has replaced the so-called Small Constitution — Act of 17 October 1992 on reciprocal relations between legislative and executive powers in the Republic of Poland as well as on territorial self-government (Journal of Laws No. 84, items 426 with later amendments) as well as certain provisions of the “old” Constitution of 1952 which remained in force under the above-mentioned Small Constitution.

  3. See Competition policy in an economy undergoing a transition period: an address by Anna Fornalczyk, President of Polish Antimonopoly Office, at the Conference on the Promotion and Protection of Competition — the Polish experience, 12 April 1992.

  4. See B. Slay, “Industrial Demonopolization and Antitrust Policy in Hungary and Poland”, paper presented at the Panel on Industrial Organization in the Post-Communist Transition at the 24th National Convention of the American Association for the Advancement of Slavic Studies, 19–22 November 1992, Phoenix, Arizona; A. Fornalczyk, “Competition Law and Policy in Poland in 1990–1995”, in: Harmonisation of the Polish Competition Legislation with Competition Rules of the European Communities. Summary and Recommendation (T. Skoczny [ed.]) (Warsaw: OCCP 1997) 37; J. Fingleton/E. Fox/D. Neven/P. Seabright (eds.), Competition Policy and the Transformation of Central Europe (CEPR 1996) 174.

  5. The Act of 24 February 1990 on Counteracting Monopolistic Practices (Journal of Laws No. 14, item 89) was amended several times afterwards; the last consolidated version of this Act was published in the Journal of Laws (1999) No. 52 item 547 (later: Antimonopoly Act of 1990); see in detail T. Skoczny, “Poland: Chapter 3 — Competition law”, in: S. Breidenbach/Ch. Campbell (eds.) Business Transactions in Eastern Europe, vol. 2 (Lexis Publishing 1977) § 2.

  6. The Antimonopoly Office (AMO), with branch offices (nine at present), was created by the Act on Counteracting Monopolistic Practices of 1990. In 1996, its name was changed to the Office for Competition and Consumer Protection (OCCP). The Antimonopoly Court (AMC) was created by the Minister of Justice’s Regulation of the of 13 April 1990 (Journal of Laws No. 27, item 157).

  7. See “The Government Programme for the Development of Competition in 1991–1993”, approved by the Council of Ministers on 19 May 1991, published in English in: Bulletin. Antimonopoly Office of Poland (Warsaw, Year I, 1994, Number 0) p. 11.

  8. See Law on Combating Unfair Competition of 16 April 1993 (Journal of Laws No. 47, item 211). See in detail T. Skoczny, “Poland: Chapter 3 — Competition law”, supra n. 5, § 3.

  9. See Law on conditions of admissibility and monitoring of state aids for undertakings (Journal of Laws No. 60, item 704).

  10. Europe Agreement Establishing an Association between the Republic of Poland, of the One Part, and the European Communities and Their Member States, on the Other Part, signed on 16 December 1991 (effective on 1 February 1994). See Decision of the Council and the Commission of 13 December 1993 on the conclusion of this Agreement (OJ [1993] L 348/1).

  11. See Free Trade Agreement between the EFTA States and Poland signed on 10 December 1992 (effective on 15 November 1993).

  12. See Central European Free Trade Agreement concluded by the Czech Republic, the Republic of Hungary, the Republic of Poland and the Slovak Republic, signed on 21 December 1992 (effective on 1 March 1993).

  13. See E. Szymanska, “Competition Rules in International Agreements Entered into Poland in the 1990s and the Principles of Enforcement thereof, in: Harmonisation of the Polish Competition Legislation with Competition Rules of the European Communities,supra n. 4, 109 et seq.

  14. The formal application was submitted on 8 April 1994.

  15. See Articles 68 and 69 of the Europe Agreement, supra n. 10.

  16. Regarding the comparison of the competititon law in the books and in practice, see in more detail: R. Pittman, Some critical provisions in the Antimonopoly Laws of Central and Eastern Europe (US Department of Justice, Antitrust Division, Economic Analysis Group Discussion Paper, 20 September 1991); T. Skoczny, Competition Legislation in Post-Socialist Countries. CSFR, Hungary, Poland, Russia (Warsaw: Friedrich Ebert Stiftung Warsaw Office 1992) 7 et seq.; Fingleton/Fox/Neven/Seabright, supra n. 4, 70 et seq.; T. Skoczny, “The adaptation of law and economy to the principle of non-discrimination on grounds of nationality, in particular in areas of freedom of establishment, free movement of service and free movement of capital”, in: J. Swierkocki (ed.) Accession Negotiations — Selected Results. Interim Report (Lodz: Conference Papers, European Institute in Lodz 2000) 181 et seq., 187 et seq.

  17. Similar Fingleton/Fox/Neven/Seabright, supra n. 4, 179.

  18. Since competition law is useful only under market economy conditions, the attempt to create legal grounds for competition development and protection (Act of 28 January 1987 on counteracting monopolistic practices in national economy, Journal of Laws No. 3, item 18) in the framework of the so-called economic reform of the late 1980s, was left without significant effects. See L. Wiszniewska, “Das polnische Antimonopolgesetz von 1987”, GRUR Int. [1988] H. 5, p. 395; E. Piontek, “Polish Antimonopoly Law”, 12 (3) World Competition (1989) 41.

  19. See U. Schulze, “Der rechtliche Rahmen der Wettbewerbspolitik; und Privatisierung in Polen, Wirtschaft und Wettbewerb”, Wirtschaft und Wettbewerb [1991] H. 1, p. 23; W.K. Sievers/A. Spark, “Competition Law and Policy in Poland”, 2 ECLR [1993] 77. See also lately published: A. Fornalczyk, “Company Groups and Development of Competition in Poland”, 2 EBOR (2001); Ch. Harding/M. Kepinski, “The Polish Law Against Monopolistic Practices”, ECLR (2001) 22(5), 181 et seq.

  20. The most important were the Antimonopoly Amendments Acts of 1995 and of 1998.

  21. Thanks to the Antimonopoly Amendment Act of 1995, the original Act covers also the “public undertakings” as defined under Art. 86 EC Treaty.

  22. The extra-territorial application of Polish competition legislation has been provided from the outset (see Art. 1 of the Antimonopoly Act of 1990 and Art. 1 of the Competititon and Consumer Protection Act of 2000).

  23. See T. Skoczny, Polish Antimonopoly Case Law (Warsaw: ELIPSA 1995) 203; See I. Wiszniewska, “Approximation of the Polish Competition Law to European standards”, Revue Internationale de la concurrence/International Review of Competition Law 193 3.2000, p. 28; S. Gronowski, “The responsibility of the judiciary in the implementation of competition policy” in: <http://www.oecd.org/daf/clp/Roundtables/JUG11.HTM.

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  24. Act of 15 December 2000 on competition and consumers protection (Journal of Laws 2000, No. 122, item 1319).

  25. See M. Tadeusiak, “Competititon and Consumers Protection on Monopolised markets in the Light of Antimonopoly Decisions in 1990–1995”, in: Harmonisation of the Polish Competition Legislation with Competition Rules of the European Communities,supra n. 4, 75 et seq.

  26. Over 80 % of all administrative decisions of the President of the AMO/OCCP, as well as the judgements of the AMC, issued between 1990 and 2000, related to individual monopolistic practices. See T. Skoczny, Polish Antimonopoly Case law,supra n. 23, pp. 104 et seq.; some tables with most relevant information for 1990–1995 are provided by Fingleton/Fox/Neven/Seabright, supra n. 4, pp. 107 et seq.

  27. For more details see T. Skoczny, “Harminization of the Polish Antimonopoly Law with the EC Competittion Rules”, in: Harmonisation of the Polish Competition Legislation with Competi- tion Rules of the European Communities,supra n. 4, 103 et seq.

  28. See the AMC judgement of 10 May 1993 (XVII Amr 6/93).

  29. See the AMC judgement of 26 September 1990 (XV Amr 1/90).

  30. Compare R.H. Foison (ed.), European Competition Law in a Nutshell (St. Paul, Minn.: West 1992).

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  31. Similar Fingleton/Fox/Neven/Seabright, supra n. 4, 178.

  32. The judgement of the Antimonopoly Court of 8 November 1993 (XVII Amr 39/93).

  33. See the AMC judgements of 8.10.1993 (XVn Amr 29/93) of 8 November 1993 (XVII Amr 27/93) and of 2.02.1999 (Ama 76/98). Both cases are presented in more detail in: Skoczny T., “Poland”, in: W. Rowley/D. Baker, International Mergers — the Antitrust Process, 3rd ed. (London: Sweet & Maxwell 2000) 487 et seq.

  34. See T. Skoczny, Polish Antimonopoly Case Law, supra n. 23, 72 et seq. There have been almost 40 AMC judgements on vertical restraints so far.

  35. For further details see T. Skoczny, “Harminization of the Polish Antimonopoly Law with the EC Competittion Rules”, in: Harmonisation of the Polish Competition Legislation with Competition Rules of the European Communities,supra n. 4, 104 et seq.

  36. See: the judgement of the Antimonopoly Court of 1 March 1993 (XVII Amr 37/92).

  37. ” Ibid.

  38. See AMC judgements of 21 July 1992 (XVII AMR 12/92) and of 6 December 1992 (XVII Amr 35/93).

  39. See Wiszniewska, “Approximation of the Polish Competition Law to European standards”, supra n. 23, 33.

  40. See the judgements of the Antimonopoly Court of 6 December 1990 (XV Amr 5/90) and 21 July 1992 (XVII Amr 12/92).

  41. See Wiszniewska, “Approximation of the Polish Competition Law to European standards”, supra n. 23, 34.

  42. Proposal for a Council Regulation on the implementation of the rules on competition laid down in Article 81 and 82 EC Treaty and on the Amendment of Regulations (EEC) 1017/68, 2988/74, 4056/86 and 3975/87. See Document 500PC0582 <http://europe.eu.int/eur-lex/en/com/dat/2000/en_500PC0582.html>.

  43. Similar Fingleton/Fox/Neven/Seabright, supra n. 4, 180.

  44. See A. Cylwik, “The Role of the Antimonopoly Office in Structural Economic Transformation”, in: Harmonisation of the Polish Competition Legislation with Competition Rules of the Eu- ropean Communities, supra n. 4, 51 et seq.

  45. For a more detailed presentation see T. Skoczny, “Poland”, in: W. Rowley/ D. Baker (eds.), International Mergers — the Antitrust Process, 2nd ed. (London: Sweet & Maxwell 1996) 1209, as well as the Supplement to the 2nd Edition (1998), at p. 307.

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  46. For a more detailed presentation see T. Skoczny, “Poland”, in: Rowley/Baker (eds.), International Mergers — the Antitrust Process, 3rd ed., supra n. 33, p. 48–3.

  47. Council Regulation (EEC) 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ [1989] L 395/1) with amendments introduced by Council Regulation (EC) 1310/97 (OJ [1997] L 180/1).

  48. See § 35 of the Gesetz gegen Wettbewerbsbeschränkungen (GWB). Bekanntmachung der Neufassung vom 26. August 1998 (BGBl. I, 2546).

  49. See the detailed analysis of these three cases in: T. Skoczny, “Poland”, in: Rowley/Baker, supra n. 33, p. 48–13.

  50. See the AMC judgement of 2.2.1999 (XVII Ama 76/98).

  51. Not yet published.

  52. The Commission will eventually get this power under the new Regulation implementing Articles 81 and 82 that will replace Regulation 17/62. See Document 500PC0582 <http://europe.eu.int/eur-lex/en/com/daty2000/en_500PC0582.html>.

  53. Also recommended by Fingleton/Fox/Neven/Seabright, supra n. 4, 177, 179, as well as by the International League of Competition law by resolution of the Saint-Malo Congress, published in: Revue Internationale de la Concurrence/International Review of Competition Law, 193 3.2000, p. 16–18. See also the International Report concerning question 2: “Should the national or supranational authorities responsible for the application of competition law be totally independent from political power both from the beginning of the investigation and at the time of the decision? If the answer is affirmative, how should that independence be guaranteed?”, as well the Polish National Report concerning this question prepared by T. Skoczny (not yet published).

  54. See E.-J. Mestmäcker, “The EC Commissions’s Modernization of Competition Policy: A Challange to the Community’s Constitutional Order”, 1 EBOR (2000) 401.

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  1. Warsaw University Faculty of Management, USA

    Tadeusz Skoczny (Professor of law, Holder of the Jean Monnet Chair on European Economic Law)

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Skoczny, T. Polish Competition Law in the 1990s — on the Way to Higher Effectiveness and Deeper Conformity with EC Competition Rules. Eur Bus Org Law Rev 2, 777–793 (2001). https://doi.org/10.1017/S1566752900000756

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