Since mid-March, Poland’s Court of Competition and Consumer Protection (SOKiK), Court of Appeal (SA) and Supreme Court (SN) have ruled on 21 decisions and lawsuits UOKiK has issued. The cases involved i. a. a rail transport company, a Polish Chamber of Physicians and Dentists, and a housing cooperative.

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 7 of the Authority’s decisions, partially upheld another 11, and completely overturned 1. In terms of lawsuits, the courts ruled illegal all the disputed clauses in one case, and in another one changed the wording of the questioned clause. Below is a summary of the most important rulings the courts have issued since the middle of March 2016.

COMPETITION PROTECTION CASES

PKP Cargo

The first judgment was issued in a case against rail transport company PKP Cargo. In 2012, UOKiK decided that the company had not implemented a 2004 decision on the company’s illegal differentiation between contractors. The Office’s position was confirmed by the courts of further instance, though the Court of Appeal (SA) in April 2016 decided to reduce the financial penalty - from 1.7 million (ca. 400 000 EUR) to 1.4 million PLN (ca. 330 000 EUR), on grounds that it was the company’s first failure to implement an UOKiK decision. It noted, however, that PKP Cargo did not implement UOKiK's decision despite knowing it needed to change or terminate the disputed contracts.

Polish Chamber of Physicians and Dentists

The Court of Appeal (SA) issued a judgment in a case concerning the Polish Chamber of Physicians and Dentists (NIL). In July 2011 UOKiK questioned the Chamber’s position, which was that the use of homeopathy contradicts the principles of medical ethics. For prescribing patients homeopathic products, available only by prescription, doctors were threatened with disciplinary proceedings. The Authority did not analyse the effectiveness of homeopathy but decided that the action of the medical self-government organisation affects competition by limiting access to the market for entrepreneurs selling products approved for legal trade. NIL was fined 49,000 PLN (ca. 12 000 EUR). In December 2014 SOKiK repealed this decision, and in April 2016 the SA dismissed UOKiK’s appeal of the competition court’s judgment. In its oral justification the SA stated that the medical organisation’s opinion was non-binding, and did not affect the ability to prescribe homeopathic medicines. The Court emphasised that, like UOKiK, it had not examined the effectiveness of homeopathic treatment.

JBB

Another judgment on competition limiting practices is related to a December 2011 decision. UOKiK determined at the time that JBB, a producer of cold meats and meat products, concluded an illegal agreement with distributors Bruno Tassi, Jakomex and Makton. The companies committed to the use of fixed pricing in the wholesale trade of JBB meat products. UOKiK imposed fines totaling 4.8 mln PLN (ca. 1.1 mln EUR) on three parties to the agreement (JBB, Bruno Tassi and Jakomex). Makton opted to take advantage of UOKiK’s leniency programme, thereby avoiding monetary sanctions. The three that were fined appealed the decision to SOKiK, which in November 2014 reduced the sanctions by 90 percent - to 486 000 PLN (ca. 115 000 EUR). The grounds for the reduction were that, though collusion was intended, it was not put into practice. The first-instance judgment was confirmed by the Court of Appeal, which in April 2016 dismissed JBB’s appeal. Bruno Tassi and Jakomex then withdrew the appeals they had filed earlier.

Farbud i Benmar

In April 2016 the SA sent down a ruling on the companies paint distributors Farbud and Benmar, both parties to an agreement between the company Fabryka Farb i Lakierów Śnieżka (the Śnieżka Paint and Lacquer Factory) and its 55 distributors. In December 2009 UOKiK determined that the agreement limited competition. The court of further instance confirmed the Authority’s decision, stating that it led to collusion. The only exception was an agreement between Śnieżka and Grupa Polskie Składy Budowlane (the PSB Group), a building parts company. In this case, the Court found that the actions of PSB approximate the activities of an agency group, and pursuant to community law, agency contracts are excluded from the prohibition of agreements restricting competition.

COLLECTIVE CONSUMER INTERESTS CASES

Enea Operator

With UOKiK the plaintiff, the Court of Appeal ruled on 18 March 2016 that energy company Enea Operator used abusive clauses. The entrepreneur has been prohibited from using the following:

• If the connection does not occur for the reasons provided in subparagraph 1.2. and 1.3. of this paragraph, the Customer is obliged to cover documented expenses and liabilities incurred by Enea Operator in connection with the execution of this agreement up to the estimated amount of the connection fee.”

• The Customer declares that he or she gives Enea Operator the guarantee period of 36 months from the date of selling the elements described in subparagraph 4 point 3.

In the Court’s assessment, the first clause carries the risk that the consumer will not receive service but will bear the costs when the company is burdened by a failure to realise an investment. With regard to the second clause, the Court reasoned that consumers are not professionals, and as such are not likely to be able to assess the cause of a system’s failure, which the guarantee stipulated.

Spółdzielnia Mieszkaniowa SIM w Bydgoszczy (the SIM Housing Cooperative in Bydgoszcz)

In April 2016 SOKiK also recognised as abusive the following contract clause used by the SIM Housing Cooperative in Bydgoszcz: Delaying payments to the cooperative by a member can cause delays in the construction of premises, suspension of the next stage of construction of the premises, an increase in the purchase price of the premises, or withdrawal from the contract by SIM, on the terms set out in the further part of the Agreement. The court agreed with UOKiK’s position that the cooperative shifts the risk of running its business onto consumers. It also indicated that the clause imposes severe penalties, but fails to specify the exact amount of delay the penalties are imposed for.

MNI Telecom

The last of the cases concerned the telecommunications company MNI Telecom. In October 2013 UOKiK issued a decision finding that that MNI had infringed collective consumer interests and imposed a fine exceeding 900,000 PLN (ca. 215 000 EUR). The company had failed to inform consumers of their right to withdraw from contracts they signed off company premises, did not furnish clients with a form enabling resignation from the contract, but did charge a fee for contract termination within the statutory period. MNI appealed the decision but in April 2016 SOKiK dismissed it. The court reasoned that the fact that none of the consumers who withdrew from the contract used the resignation form the company allegedly submitted attested to the likelihood it had never been provided.

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
Pl. Powstańców Warszawy 1, 00-950 Warsaw
Phone.: +48 22 827 28 92, +48 22 55 60 314, +48 22 55 60 430
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