The international conference “Current problems of the Polish and European competition protection law”, which took place today in Poznań, was dedicated to - among other - the relations between the antitrust law and the regulatory provisions. Representatives from the academic circles and the competition protection authorities from Poland and Germany participated in the event

Today’s conference - organised by the Office of Competition and Consumer Protection together with the Department of European Law and the Department of Public Economic Law of the Adam Mickiewicz University in Poznań - was dedicated to the current problems of the competition law. Its main objective was the discussion on the reform of European antitrust regulations and exchange of experiences between Poland and Germany on liberalisation and opening up to the competition of subsequent markets, closed thereto so far.

The problem of the so-called ‘regulated’ sectors is closely connected with this issue. These are markets on which - due to their specifics - it is impossible to introduce the competition mechanisms. This mainly refers to energy, telecommunications, railway and air transport. Conducting economic activity in these sectors requires access to specialist infrastructure, which - due to high costs - is not worth to double. This causes their structural closing to competition and the necessity to regulate. As Professor Sigfried Klaue from the German Federal Cartel Office stated, its basic objective is to provide to all citizens, and regardless their place of residence, access to basic services (telecommunications, transportation, water, electricity and gas supply, etc.). As with every other intervention from the state, regulation in the modern economy must be an exceptional situation, admissible only where market mechanisms are not sufficient. Furthermore, it should be a temporary solution, whereas the final objective of the regulation should be the introduction to a given competition sector.

Regulatory authorities in Poland are the President of the Office of the Telecommunications and Post Regulation, President of the Office for Railway Transport, President of the Civil Aviation Office and the President of the Energy Regulatory Office. Currently, there are discussions regarding the concept of including their competences into the Office of Competition and Consumer Protection. Establishment of one strong antitrust authority shall in principle improve the effectiveness of markets regulation and introducing the rules of competition onto them.

According to many experts in the area of law and economy, but also according to UOKiK, the proposed solution should be considered premature, to say the least. No EU country has a system based on consolidation of the competition protection authority with regulatory bodies. Furthermore, even in Germany (where, as it seems from the statement of Doctor Harald Piltz from the Federal Cartel Office, the regulated markets are in the further stage of the liberalisation process than in Poland) the reforms are rather heading in the opposite direction. For instance, in July this year a decision was made there to exclude the competences linked to regulation of the energy sector from the competition protection authority and to hand it over to a specialized regulatory body.

UOKiK and regulatory bodies connect markets, to which their actions refer, and the objective, which is bringing to emergence of competition. However, they act on different stages of this process -the regulatory bodies beforehand, and the antitrust authority afterwards. Moreover, regulatory authorities grant licenses. After their possible incorporation with UOKiK, there could be a threat that one authority is granting license first, then rules against the entity that received it. Moreover, the regulatory bodies settle individual disputes between undertakings. Meanwhile, UOKiK is acting in the public interest. It could happen that in one (individual) case the came authority would consider the action of a monopolist and illegal, and in other (antitrust) case, where the same entities participate, would not find the use of competition restricting practices, as there was no infringement of the public interest.

Both the antitrust law and the regulatory provisions serve - in a longer perspective - the same objective, namely the development of competition on the market. The actions taken on their basis are complementing one another. However, these are different instruments influencing the market structure. This was emphasized by Doctor Piotr Lissoń from the Department of Public Economic Law of the Adam Mickiewicz University who found that in the Polish legal system there is lack of rules determining the realization between the competences of UOKiK and the regulatory bodies. In this situation, the case-law of the Supreme Court has a deciding role. He claimed that the proceedings before the President of UOKiK and the President of the Energy Regulatory Office are not equivalent, but complement one another. It is so for instance in the case of rates for electricity supply - once approved by the Energy Regulatory Office, UOKiK has no right to question them.

Therefore, in the opinion of UOKiK, in the current situation not so much the organisational changes, but strengthening of the regulatory bodies that is legitimate - especially increasing the effectiveness of enforcement of the decisions they issue - and exact determination of the realisation between them and UOKiK.

Additional Information:
Elżbieta Anders, Spokesperson of UOKiK
Department of International Relations and Communication
Office of Competition and Consumer Protection
Pl. Powstańców Warszawy 1, 00-950 Warsaw
Tel. 22 827 28 92, 55 60 106, 55 60 314
E-mail: eanders@uokik.gov.pl