Since early February 2016, Poland’s Court of Competition and Consumer Protection (SOKiK), Court of Appeal (CA) and Supreme Court (SC) have ruled on 26 decisions and lawsuits UOKiK has issued. The cases have involved mobile phone network operator, financial institutions, a developer, an oragniser of an SMS competition, a producer of household chemicals and postal operator.

The cases concerned decisions finding infringement of collective consumer interests, cases of limiting competition, and lawsuits UOKiK filed over the use of prohibited clauses. The courts fully upheld 12 of the Authority’s decisions, partially upheld another 9, and completely overturned one. In terms of lawsuits, the courts ruled illegal all the disputed clauses in two cases, and in another one some of the clauses in the suit. Below is a summary of the most important rulings the courts have issued since the beginning of February 2016.

The first concerns a December 2012 decision. UOKiK had questioned an advertising campaign Polkomtel ran for its mobile network. The company used leaflets, television spots, posters and billboards which misled the public about phone charges. The ads pushed a certain price per minute to all telephone networks. However, the same ads stated, in nearly unintelligible fashion, that the promotion did not apply to one network. Further, the company did not inform consumers that the attractive price applied only to numbers customers selected in advance and at a fixed rate. UOKiK fined Polkomtel more than 4.9 million PLN [ca. 1,2 million EUR]. In October, 2014 SOKiK reversed the decision, annulling the points about the promotion not including one of the operators and the penalties UOKiK had imposed for that activity. The court also reduced the sanctions for the other practices. The Court of Appeal was of another opinion, and in February 2016 remanded the case for reconsideration by SOKiK. The CA also upheld UOKiK’s decision about the lack of information that the lower price was valid for only select numbers for a fee. The court also dismissed the appeal with regard to the penalty to more than 1.7 million PLN [ca. 405,000 EUR]. This part of the CA judgment is legally binding, which means that following SOKiK’s next judgment, the fine cannot be lower than this amount.

The courts also ruled in cases concerning financial institutions, one of which involved Bank Millennium. In December 2012 UOKiK issued a decision in which it questioned contract provisions the bank used in individual retirement accounts (IRAs). The bank’s lack of responsibility for conducting monetary operations had raised UOKiK’s concerns. The Authority also questioned its practice of not indicating in IRA contracts the reasons they could be changed. Millennium was fined 2.8 million PLN [ca. 0,7 million EUR]. In November 2014 SOKiK issued a ruling in which it confirmed the bank employed practices infringing collective consumer interests, but had also abandoned them before the decision was issued. The court therefore decided to reduce the fine to 850,000 PLN [ca. 202,000 EUR]. In February 2016 the CA dismissed the appeals of the parties and upheld the judgment of the court of first instance. It stressed that the bank was required to apply the provisions of Banking Law when it formulated the IRA contracts.

In a judgment against a non-bank financial institution, the court ruled against Szybka Pożyczka (Quick Loan). In October 2014 UOKiK issued a decision finding that the company failed to include in contracts information required on the annual percentage rate of overdue debt. Objections were also raised about the company’s leaflets, which lacked information on charges included in the total cost of the loan and the real annual interest rate, among other things. Szybka Pożyczka was fined more than 16,000 PLN [ca. 3,800 EUR]. In February 2016 SOKiK dismissed the company’s appeal and upheld UOKiK’s decision. In its oral justification, the court agreed with UOKiK that the company had failed to provide reliable, true and complete information to consumers.

Another judgment was issued in an appeal brought by CT Creative Team, whose activities include organising SMS competitions. In a May 2013 decision, UOKiK questioned the content of the company’s advertising for a knowledge quiz. In the Office’s view, the SMSs CT Creative Team sent were misleading and did not contain information required by law. The messages lacked the information that sending back an SMS meant being entered into the competition, which required consumers to send additional paid SMSs to reply to questions they received. Furthermore, commercials did not contain information on the price of these messages, nor about the organiser of the competition. The company was fined more than 141,000 PLN [33,500 EUR]. The decision was upheld by courts of further instances. In February 2016 the Court of Appeal found that the content of the SMSs was misleading, as it suggested a prize could be won but did not indicate the costs of participation in the competition.

In February SOKiK also found illegal two clauses used by the developer Jankowski Pulchny – Wiśniowy Sad. UOKiK had filed the lawsuit in the case. The first provision required buyers of the company’s real estate to accept in advance the business activity which was to be carried out in the building, even if it could result in their being inconvenienced (eg. selling alcohol). The second clause required consumers to use the notary services of only a single public notary, who was chosen by the developer. The buyer could choose another public notary, but only from among those operating in Warsaw. However, in such case, the signing of a notarial deed could take place only at the company’s headquarters.

In recent weeks the courts have also ruled on cases involving competition limiting practices.

The Court of Appeal ruled on a November 2011 UOKiK decision finding that Inco-Veritas (currently Grupa Inco) concluded an illegal agreement with distributors of its products. For ten years the company had been dividing up the market and setting minimum wholesale prices on household products including dishwashing soap and fertilisers. UOKiK imposed a 2 million PLN [ca. 480,000 EUR] fine in response. Both SOKiK and the CA fully shared UOKiK’s view, and the CA dismissed Grupa Inco’s appeal in February 2016. In its oral justification, the court said that the evidence gathered in the case showed irrefutably that the company had entered into and benefitted from agreements with distributors. The court also addressed the company’s contention that the decision should be applied to all participants in the collusion, and not only its initiator. It stated that determining the parties it includes in an antimonopoly proceeding is the exclusive competence of UOKiK. The Authority acts upon its own administrative discretion and there is no obligation to direct the decision to all parties to an agreement.

The Court of Appeal also ruled on a 2010 decision concerning Polish Post’s (Poczta Polska) abuse of its dominant position. UOKiK stated that in 2001 and 2002, the Polish Post used its strong market position to impose excessively high prices for the receipt, transport and delivery of printed materials to a weight of 20 grams. In October 2014 SOKiK dismissed the appeal of the postal operator and in 2016 the Court of Appeal upheld the decision. In an oral justification, the court stated that UOKiK had proved the Post’s practice illegal. UOKiK had rightly called on an assessor appointed during the proceedings, who explicitly stated that the price was unreasonably high, had no economic justification, and that if the Post had been operating in a competitive environment, it would not have been able to increase prices so drastically.

The final case involving competition limiting practices concerns a March 2013 UOKiK decision against real estate developer Towarzystwo Budownictwa Spolecznego Wroclaw (Social Construction Industry Association Wroclaw), which obstructed the services of a telecommunications company in its buildings. In an October 2014 ruling SOKiK reduced the financial penalties UOKiK had imposed from 17,000  PLN ([ca. 4000 EUR) to 15,000 PLN [ca. 3500 EUR] on grounds the the company abandoned the illegal practice before the decision was issued. The Court of Appeal upheld SOKiK’s ruling in February 2016.  

SOKiK has also issued a resolution in a case concerning a Polkomtel complaint on the Authority’s resolution. The Office refused to take into account several applications from Polkomtel to limit other parties’ right of access to evidence in antitrust proceedings against three mobile network operators (Polkomtel, T-Mobile Poland and Orange Poland). According to the law, the parties have access to all documents in the case file with the exception of those containing information that constitutes a company trade secret. In UOKiK’s view, an entity making a request to limit the right of access should clearly identify and justify why the information is protected by law and cannot be made available to other entities. In this case, Polkomtel said only that "the information includes secrets" and though it was called upon several times to do so, it failed to clarify filings. On these grounds, UOKiK issued a resolution rejecting the company’s application to limit its rivals’ right of access. SOKiK in March 2016 agreed with the Office and dismissed Polkomtel’s complaint. The court stated that the company needed to indicate precisely which information includes secrets and justify why they should be kept secret. Access to the evidence can be limited only to the extent necessary. SOKiK further pointed out that, pursuant to Art. 10 of the Code of administrative law, parties must have access to documents collected during the proceedings to honour the principle of transparency. SOKiK’s resolution in this matter is final.

The appeal procedure

An enterprise may appeal an UOKiK decision to SOKiK, and a SOKiK ruling, in turn, to the Court of Appeal in Warsaw. A cassation appeal from a Court of Appeal judgment can be filed with the Supreme Court.

Additional information for the media:

Press Office, UOKiK
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Phone.: +48 22 827 28 92, +48 22 55 60 314, +48 22 55 60 430
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