• The judicial decisions made as a follow-up to the UOKiK decisions on competition protection pertained to the following undertakings: Sfinks Group, Terg, PKP Cargo.

Below we present a summary of the most important judicial decisions concerning competition protection.

 Sfinks – case no. VII AGA 828/18

The first judgement pertains to the decision from June 2013, in which the President of UOKiK held that the conclusion of an agreement between Sfinks and its franchisees which provided for fixed prices for products sold at the company’s network of restaurants constituted a competition-restricting practice. A financial penalty in the amount exceeding PLN 462,000 was imposed upon the undertaking. In 2016, the Court of Competition and Consumer Protection dismissed the company’s appeal in its entirety. In January 2018, the Court of Appeal amended the judgement of the Court of Competition and Consumer Protection by decreasing the penalty amount to PLN 50,000. In the oral statement of reasons, the court stated that the imposition of fixed prices in its franchise network by Sfinks constituted a competition-restricting agreement. Despite the fact that the company claimed the use of uniform pricing was necessary to ensure consistent service quality, it has failed to present any marketing analysis which would support those claims. In its decision to decrease the penalty amount, the Court of Appeal considered that the difference between the price which may have hypothetically been adopted in the absence of the agreement and the price fixed under the said agreement could not have been substantial, which meant that the detrimental effect of the agreement was only minor.

Terg – case no. III SK 1/17

In February 2018, a hearing took place before the Supreme Court following the cassation appeal filed by the company Terg, which challenged the judgement of the Court of Appeal made in September 2016. In its judgement, the Court of Appeal dismissed the appeal of the undertaking against the decision of the President of UOKiK from October 2013 in its entirety. The UOKiK claimed that Terg proceeded with a concentration scheme without seeking the approval of the Competition Authority and imposed a penalty in the amount of PLN 40,000 upon the undertaking. The Supreme Court dismissed the cassation appeal. The Court held that there were no circumstances that would justify a decrease or waiver of the penalty imposed. The Court further held that the existing case law provided that the courts should be wary of making adjustments to the penalties applied by the UOKiK. Such adjustments should only be made where the circumstances of the case indicated that the President of the Competition Authority acted outside the scope of his or her competences.

PKP Cargo – case no. III SK 6/17

The final judgement pertains to the decision made back in 2012, under which a penalty of PLN 1.7 million was imposed upon PKP Cargo for its failure to comply with an earlier decision from December 2004. For more than 4 years, the undertaking has continued to abuse its dominant position and has failed to introduce changes to the contracts concluded with its contractors according to the Competition Authority’s request. PKP Cargo applied different discounts for the transport of bituminous coal to various contractors despite the fact that both the turnover and weight of the goods carried remained similar. In addition, the contracts applied by the company provided for differing regulations with respect to the weight of transported goods, both annually and in individual quarters. In April 2016, the Court of Appeal amended the UOKiK’s decision, decreasing the penalty amount; the resulting penalty amounted to more than PLN 1.4 million. In March 2018, the Supreme Court dismissed the cassation appeal filed by PKP Cargo. In the oral statement of reasons, the Court held that in order to comply with the Competition Authority’s decision, the company should gave introduced a uniform set of rules in its contracts. Instead, however the company has deliberately chosen not to discontinue its competition-restricting practices, the Court further held.

Appeal procedure

The undertakings may appeal to the Court of Competition and Consumer Protection against the decision of the UOKiK; subsequently, they may also appeal against the judgement of the Court of Competition and Consumer Protection to the Court of Appeal in Warsaw. It is also possible to file a further appeal (cassation appeal) against the judgement the Court of Appeal to the Supreme Court.

Judicial decisions database

Since November 2015, the judicial decisions database is available on the UOKiK website. It contains information on all decisions concerning practices restricting competition, concentration control, infringement of collective interests of consumers as well as cases concerning prohibited clauses in which the President of the UOKiK acted as the claimant. The database is available under the “Judgements” tab on the UOKiK website: http://decyzje.uokik.gov.pl/bp/wyroki.nsf. Details on the rules for posting judgments can be found in the document: Zasady informowania o sprawowaniu sądowej kontroli nad decyzjami prezesa UOKiK (The rules governing provision of information on judicial control of UOKiK’s decisions).

Additional information for the media:

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