The issue of procedural fairness in administrative proceedings is currently widely discussed at international fora devoted to competition law. It was also the main topic of the discussion during the meeting of the OECD Working Party (WP 3 on Cooperation and Enforcement) held on 16 February 2010, during which the President of the Office, Małgorzata Krasnodębska-Tomkiel referred to the Polish legislation within this scope.

The procedural rules are applicable to all stages of administrative proceedings (also antitrust proceedings) and they have the nature of legal norms. Violation of these rules can result in a decision being overruled by a court. Carrying out proceedings in line with the rules of procedural fairness implies application of defined and objective criteria to a specific case by the entity issuing an administrative decision towards the parties of the proceedings.

The basic procedural values, which set out the assessment criteria for a given procedure cover, inter alia, impartiality, lawfulness and active participation of the parties. Openness of the proceedings and reliable justification for the issued decisions, which is based on thorough factual and legal analysis, constitute other significant elements of procedural fairness. Moreover, the case should be settled objectively and without unnecessary delay and the parties should be treated equally. Procedural fairness can be implemented only when there are mechanisms in place to carry out judicial control of the decisions made.

The President of the Office discussed the practical issues related to conducting explanatory and antitrust proceedings – concerning, inter alia, the dates of the proceedings and analysis of the evidence. Pursuant to the Act on competition and consumer protection antitrust proceeding should be completed within 5 months (2 months for cases on mergers). The President presented premises for prolonging the above-mentioned deadlines and indicated that, for example, the need to analyse the gathered evidence can entail extension of the duration of the procedure on the basis of the provisions of the Code of Administrative Proceedings. In the context of the analysis of evidence the President emphasised the fact that under all proceedings the burden of the evidence lies on the President of the UOKiK, however, the party has the right to actively prove the facts, i.e. it may give explanations and submit documents on its own initiative. Within this scope, the President has discussed the formal requirements of the motions as to evidence and the general process of assessing evidence from documents, testimonies of the witnesses and experts’ opinions. In her presentation the President also discussed the issue of popularising UOKiK’s decisions, i.e. rules of publishing the decisions in the Official Journal and in publically accessible database, which makes it possible for everyone to familiarise with the content and justification of the decision of their interest. Finally, the President discussed the so-called panel approach to elaborating a draft decision, which consists in impartial assessment of the draft from the legal and economic perspective by UOKIK units.

Individual countries have very different law enforcement systems. However, regardless of the fact whether the system is based on administrative law or on the civil law the transparency and impartiality constitute the basic requirements of antitrust proceedings. They contribute to better understanding of the facts that form the basis of investigation procedure and ensure better quality of evidence, on which agencies ground their actions.

During the meeting a special emphasis was put on the issue of how and when individual jurisdictions inform the parties on the charges against them and on initiating antitrust proceedings, as well as on the problem concerning the extent to which the parties can cooperate with the decision-making body. As far as all systems recognise the principle of informing the parties on the charges levelled against them, the manner of implementing the above differs greatly in practice. Some countries carry out an open policy and they continue dialogue with the parties at all stages of the proceedings through providing to the parties extensive information on the case, its scope and schedule. Others, on the other hand, delay communication with the entrepreneurs until the official closure of the proceedings and they only provide the parties with the conclusions reached during oral hearings or they choose the ad hoc approach.

It should be emphasised that UOKiK gives priority to the issues of respecting procedures and fairness in performed proceedings. Moreover, it also makes efforts to increase transparency and predictability of its actions. In order to implement these claims in the previous year, the Office issued guidelines on leniency programme and guidelines on setting fines for competition restricting practices. These documents constitute a manual for entrepreneurs intending to use the leniency programme and indicate the methods of establishing sanctions by the antitrust office.

Additional information:
Marta Skrobisz, Chief Specialist
Department of International Relations and Communication
Pl. Powstańców Warszawy 1, 00-950 Warsaw, Poland
Tel. (+48 22) 55 60 311
faks (+48 22) 826 11 86
E-mail: [SCODE]bWFydGEuc2tyb2Jpc3pAdW9raWsuZ292LnBs[ECODE]

Additional information for press:
Małgorzata Cieloch, Spokesperson for UOKiK
Department of International Relations and Communication
Pl. Powstańców Warszawy 1, 00-950 Warsaw, Poland
Tel. (+48 22) 827 28 92, 55 60 106, 55 60 430
faks (+48 22) 826 11 86
E-mail: [SCODE]bWFsZ29yemF0YS5jaWVsb2NoQHVva2lrLmdvdi5wbA==[ECODE]