Since the time of Poland’s accession to the EU, the operating conditions have changed not only for entrepreneurs, but also for the state administration. The national antitrust authorities have gained the ability to issue administrative decisions on the basis of EU regulations. Their competences in this area are precisely defined to ensure consistent decision making and transparency of their actions, and thus guarantee legal certainty for entrepreneurs.

However, interpretation of laws is sometimes non-uniform, as demonstrated by the pending procedural dispute between the President of the Office of Competition and Consumer Protection and Netia (formerly Tele2 Polska). It concerns the decision of the President of the Office in the matter of Telekomunikacja Polska, wherein the Office of Competition and Consumer Protection, on the basis of the Polish law, found that the company did not abuse its dominant position in the market for telephone services in the fixed telephony network, thus discontinuing the proceedings concerning a possible breach of EU regulations. According to Netia, as subsequently confirmed by the Court of Competition and Consumer Protection and the Court of Appeal, the Office had erroneously applied EU law in its decision. The company argued that EU law allowed Polish authorities to issue decision stating that a practice of restricting competition had not taken place (i.e., a negative subject matter decision). As a result of the cassation appeal filed by the President of the Office of Competition and Consumer Protection against the ruling of the Court of Appeal, the dispute ended up in the Supreme Court, which forwarded a prejudicial question on this matter to the Court of Justice of the European Union.

On 3^rd May this yearthe Court confirmed the correctness of the decision made by the President of the Office of Competition and Consumer Protection. Thus, the Court ruled out the possibility of a national competition authority issuing a decision finding no infringement of the Treaty (in this case, TFEU 102). Such power is vested solely in the European Commission.

This judgement, due to numerous interpretation discrepancies – e.g. on the part of the Czech Republic’s Government - is important for antitrust authorities of the Member States and entrepreneurs in the antitrust proceedings. The win has confirmed the interpretation of the law applied by the President of the Office of Competition and Consumer Protection and the argumentation of the Office of Competition and Consumer Protection presented in the prejudicial proceedings.

At the high - EU - level this is an unprecedented judgement, but in the judicial decisions of domestic courts our efficacy reaches almost 80 percent. However, it is not the statistics that are of key importance for the Office, it is rather the transparency of the activities intended to benefit all market participants, and the judgement in question, once again confirmed this thesis.

 Małgorzata Krasnodębska-Tomkiel

President of the Office of Competition and Consumer Protection