Sport & Freizeit, Arriva Bus Transport Polska, Jubiler, Akzo Nobel Decorative Paints, Narodowy Fundusz Zdrowia (National Health Fund). These are the entrepreneurs to which the decisions of the UOKiK on the protection of competition pertained.

The summary of the most significant decisions is presented below.

Sport & Freizeit – case no. XVII AmA 115/14

The first among the judgements discussed here pertains to the decision made back in December 2013. In this decision, the UOKiK held that the agreement on resale prices of skiing equipment and accessories concluded by Sport & Freizeit and Intersport Polska constituted a competition-restricting practice. Whereas Intersport Polska took advantage of the leniency programme and managed to avoid the imposition of a financial penalty, Sport & Freizeit had to pay a fine in the amount of more than PLN 122 thousand. In February 2017, the Court of Competition and Consumer Protection shared the view expressed by the President of the UOKiK and, in its judgement, dismissed the appeal of Sport & Freizeit. In the opinion of the court, the evidence in the case proved that the entrepreneurs engaged in activities intended to allow them to pursue a joint, coordinated pricing policy. In the view of the court, there was no basis whatsoever to reduce the amount of the penalty imposed. 

Arriva Bus Transport Polska - case no. XVII AmA 87/14

The judgement made by the court in November 2016 concerned the appeal lodged by Arriva Bus Transport Polska against the decision of the President of UOKiK made back in December 2013. The UOKiK imposed a financial penalty in the amount of more than PLN 76 thousand, accusing the entrepreneur of an abuse of a dominant position on the local passenger transport markets. By pricing its services below cost and changing the arrival and departure times, the entrepreneur has managed to eliminate its competitor from the market. In its judgement, the Court of Competition and Consumer Protection dismissed the appeal.

Jubiler – case no. ACa 1539/15

In December 2016, the Court of Appeal in Warsaw dismissed the appeal of the President of the UOKiK against the judgement of the Court of Competition and Consumer Protection from June 2015. In this judgement, the court of first instance set aside the decision of the Competition Authority adopted back in December 2013, stating that the decision in question constituted a material violation of the provisions of applicable laws. In its decision, the President of the Competition Authority held that the conclusion by Jubiler of an agreement with the retailers of Hugo Boss, Tommy Hilfiger, Kenneth Cole and Roamer watches amounted to a competition-restricting practice. The agreement in question involved the determination of minimum resale prices for goods offered in both traditional stores and online. The UOKiK held that the practice in question must be discontinued, imposing a penalty in the amount exceeding PLN 819 thousand upon the company. In the oral justification of the judgement, the Court of Appeal held that the appeal was groundless. The Court held that the very definition of an agreement implies that it must be concluded by the organiser of the network and at least one distributor. Although proceedings may be conducted against a single entity, the participants of the given agreement must be precisely defined. The Court of Appeal held that the President of the UOKiK failed to indicate which entities actually participated in the impugned agreement, as the decision itself pertained to the Jubiler company alone.

Anyro – case no. VI ACa 1673/15

In January 2017, the Court of Appeal made another judgement in a similar case. The case in question pertained to the decision from December 2013, in which the Competition Authority held that Anyro, the distributor of Hugo Boss, Tommy Hilfiger, Kenneth Cole and Roamer watches, engaged in collusion with the retailers of the goods offered. The Court dismissed the appeal of the President of the UOKiK made against the decision of the Court of Competition and Consumer Protection which set the above decision aside. In its justification, the Court of Appeal stated that, contrary to the opinion expressed by the court of lower instance, the Competition Authority did not materially breach the provisions of applicable laws. However, in its decision, the Competition Authority has nevertheless failed to specify the participants of the anti-competitive agreement or the shares of the entrepreneurs in question in the applicable market which, in the view of the Court, has also not been determined in an appropriate manner.  

Akzo Nobel Decorative Paints – case no. VI ACa 1057/15

Leroy Merlin – case no. VI ACa 1057/15

Praktiker – case no. VI ACa 1057/15

OBI – case no. VI ACa 1057/15

In January 2017, the Court of Appeal issued a judgement on the appeal against the judgement of the Court of Competition and Consumer Protection from March 2015, which amended the decision of the President of the UOKiK pertaining to the competition-restricting agreement concluded by Akzo Nobel Decorative Paints with Leroy Merlin, Castorama, Praktiker and OBI. The entrepreneurs in question engaged in collusion which involved the fixing of resale prices for paints and coatings manufactured by Akzo Nobel. Although the courts of both instances held that the activities of the entrepreneurs in question amounted to a competition-restricting agreement, they have reduced the fines imposed by the President of the UOKiK substantially, from nearly PLN 52 million to over PLN 4.2 million. In the oral justification for its judgement, the Court of Appeal upheld the view of the President of the UOKiK that the practices applied by the aforementioned entrepreneurs constituted a material infringement having a significant, detrimental impact on the functioning of competition on the market. At the same time, however, the Court of Appeal held that, in determining the amounts of the penalties imposed, the President of the UOKiK has failed to take sufficient account of the fact that Akzo Nobel was a relatively minor supplier whose importance for its distributor was limited at best, which meant that the impugned practice could not have a significant impact on the market in question. At the same time, the Court of Appeal set aside the decision insofar as it pertained to the participation in the agreement with Leroy Merlin. The Court held that, whereas the entrepreneur participated in the illegal agreement in 2005, the evidence for its participation in the 2006 collusion was insufficient. For the above reason, at the time of initiation of the antitrust proceedings, the claims pertaining to the practices which the company engaged in had become time-barred.

Narodowy Fundusz Zdrowia (the National Health Fund) – case no. VI ACa 1787/15

The last among the judgements discussed pertains to the decision made back in December 2013, in which the President of the UOKiK held that Narodowy Fundusz Zdrowia (the National Health Fund) abused its dominant position on the domestic healthcare services market with respect to publicly funded magnetic resonance imaging and computer tomography. A financial penalty in an amount exceeding PLN 181 thousand was imposed upon the National Health Fund. The impugned practice involved the inclusion of the number of scans per annum as a qualitative criterion for the assessment of offers for the conclusion of agreements for healthcare services. In September 2015, the court of first instance amended the decision, reducing the financial penalty to an amount of over PLN 45 thousand. The judgement of the Regional Court was appealed against by the National Health Fund in its entirety. In February 2017, the Court of Appeal dismissed the appeal and upheld the decision of the President of the UOKiK. In the oral justification of the judgement, the Court of Appeal held that the evidence in the case before it clearly demonstrated that the criterion for the selection of offers applied by the National Health Fund resulted in the refusal to conclude contracts with certain entities or prevented such entities from establishing a presence on the market.

Appeals procedure

An appeal against the decision of the President of the UOKiK may be made to the Court of Competition and Consumer Protection; the judgements of the Court may, in turn, be appealed against to the Court of Appeal in Warsaw. In certain cases it is also possible to file a cassation appeal against the judgement of the Court of Appeal to the Supreme Court.

Court judgement database

From November 2015, a court judgement database is available on the UOKiK website. The database contains information on all judgements pertaining to the decisions on competition-restricting practices, control of concentration and infringement of collective consumer interests as well as judgements issued in cases concerning abusive clauses in which the President of the UOKiK appeared as the claimant. The database is available under the “Judgements” tab on the UOKiK website: http://decyzje.uokik.gov.pl/bp/wyroki.nsf. Detailed information on the publication of court judgements is provided in the document titled Rules on providing information on the judicial review of the decisions of the President of the UOKiK.

Additional information for the media:

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