competition | In Principle

New regulations on payment gridlock entered into force on 1 January 2020, via an amendment to the Act Combatting Excessive Delays in Commercial Transactions of 8 March 2013, the Civil Procedure Code, and the Unfair Competition Act. How will the new rules affect compliance in companies?

Contemporary competition law is built on two pillars: faith in the liberal market economy and faith in economic analysis. But in many countries in the West, including Poland, this faith is clearly dying. How will competition law look in the third decade of the 21st century, and will the current situation inevitably lead to changes in the principles governing enforcement of competition law?

According to Court of Justice of the European Union (CJEU) case law and EC directives, the principle of proportionality and equal treatment must be observed when selecting contractors in public procurement proceedings. Clearly, the Public Procurement Office and National Appeals Chamber have an obligation to evaluate public procurement proceedings in terms of these principles. However, as complaints about breach of competition regulations in tenders are submitted to the president of the Office of Competition and Consumer Protection (UOKiK), it is not clear whether this institution is required to refer to these principles.

A judgment of the Supreme Court overruling a decision of the president of the Office of Competition and Consumer Protection (UOKiK) does not apply to all participants in an agreement restricting competition. If a cassation appeal by one of them has been rejected or the Supreme Court has refused to accept it for examination, the case is irrevocably closed, regardless of how the proceedings continue and whether the decision of the president of UOKiK is ultimately upheld.

For the first time, the president of the Office of Competition and Consumer Protection (UOKiK) is conducting antimonopoly proceedings concerning competition-restricting agreements not only concerning businesses, but also persons managing them. This is a milestone in the history of enforcement of competition law in Poland. An outline of the rules regarding liability of persons managing a business and business enterprise in the context of prohibited agreements follows.

An amendment to the Polish Unfair Competition Act extends the legal protection given to trade secrets. But information known to or easily attainable for people in a particular sector or familiar with a particular subject will not constitute trade secrets even if the information is not disclosed to the general public. Labelling it “confidential” might not be sufficient.

Once the Unfair Competition Act is amended, will a nondisclosure obligation have to be provided for explicitly in an employment contract when an employee leaves?

Protection of confidential information is not absolute and is subject to limitations, for instance where there is a public interest. Subject to certain conditions, a person who has a nondisclosure obligation may lawfully use the entrusted information despite the confidentiality obligation. At the moment there is no all-embracing regulation on this issue, but this may change soon.

As information technology and the knowledge-based economy develop, trade secrets are increasing in importance. At the same time, theft of trade secrets and losses for the economy due to this problem are increasing. In recent years legislators have taken measures to modernise and strengthen the protection of trade secrets.

The recent introduction into the Polish legal system of the possibility of applying for disclosure of evidence in the other party’s possession in cases alleging antitrust violations has stirred a debate over the treatment of evidence in Polish civil procedure. Should parties be given a broader right to demand production of evidence by the other side?

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.