The key issues discussed during the conference Competition Law: Present State and Expected Changes included the problem of how to facilitate lodging of consumer claims against entrepreneurs on grounds of a breach of competition law. In the meeting representatives of the European Commission, the Polish and German competition authorities as well as the academic community took part

One of the key issues discussed was the problem of how to facilitate seeking of compensation by consumers or entrepreneurs who sustained losses as a result of anti-competitive practices. As Mr Emil Paulis from the EC Directorate-General for Competition noticed, the possibility of enforcement of the competition rules by common courts is still insufficiently made use of in the Member States of the European Union. The majority of proceedings against members of cartels or entrepreneurs who abuse a dominant position in the market is conducted by competition authorities, whereas in the United States the situation is quite opposite: a vast majority of decisions in cases related to practices that constrain competition is taken before courts as a result of either individual or collective claims lodged by consumers or entrepreneurs who suffered a loss therefrom.

The chief advantage of the enforcement of competition rules in private proceedings consists in the shortening of the proceedings’ duration. Moreover, the consumer or entrepreneur who sustained a loss as a result of an anti-competitive practice may seek compensation therefor. The US law provides for a possibility to award treble damages. The European Commission is now considering introduction of similar solutions.

In order to facilitate the seeking of compensation from members of cartels or from entrepreneurs who abuse a dominant position by the injured parties themselves, certain steps have to be taken. The guidelines for such measures are included in the so-called Green Paper of the European Commission. The document proposes, inter alia, reduction of a financial risk the lodging of a claim is associated with. It is a generally applicable rule that the risk is borne by the unsuccessful party. One of the solutions currently considered by the European Commission is introduction of a rule whereby the consumer or entrepreneur who lodges a claim would not be required to pay court fees.

Furthermore, the formal requirements concerning the evidence to be presented by the injured party should be relaxed. This should make this method of claiming compensation more generally available as in practice the consumer is unable to prove, for example, the existence of a price collusion. Another solution proposed by the European Commission and intended to facilitate claiming of compensation is introduction of a regulation whereby civil-law courts would be bound by decisions issued by competition authorities which ascertained that an anti-competitive practice was in place. Such a solution is already in place e.g. in Germany where decisions taken by all the authorities which are members of the European Competition Network (ECN) are binding upon the courts.

A similar proposal was put forward by Mrs Małgorzata Krasnodębska-Tomkiel and Mrs Monika Bychowska from the Office of Competition and Consumer Protection. The two ways of enforcement of competition law (public and private proceedings) complement each other. Minor cases can be effectively settled in civil-law proceedings before common courts while anti-trust authorities could focus on the most severe cases of breach of the competition rules. Such a solution should render combating of anti-competitive practices more effective.

The majority of anti-trust proceedings at UOKiK are initiated upon request. A substantial portion thereof is closed with the breach of the law not being found. Moreover, the Office is bound by the request submitted by the entrepreneur or other undertaking and thus, for example, it may not extend the proceedings to include other anti-competitive practices. Despite these disadvantages, Bychowska and Krasnodębska-Tomkiel concluded that the procedure in place allows effective operation. Since 2003, the President of UOKiK has issued 479 decisions. Among those appealed against by the entrepreneurs, in more than 80% of cases courts validated the decision of the competition authority.

The conference on Thursday, in which Mr Ulf Boege, President of Bundeskartellamt (Federal Competition Office), took part, initiated implementation of the Polish-German Twinning Co-Operation project. Partners under the project include the Office of Competition and Consumer Protection and, on the part of Germany, among others, the Ministry of Economy and Technology, and Bundeskartellamt. The project, financed with the EU funds under the Transition Facility programme, is intended to enhance the competition policy in Poland.

Additional information:
Elżbieta Anders, UOKiK Press Spokesperson
Department of International Relations and Communication
Office of Competition and Consumer Protection
Pl. Powstańców Warszawy 1, 00-950 Warsaw
Tel. 22 827 28 92, 55 60 106, 55 60 314
E-mail: [SCODE]ZWFuZGVyc0B1b2tpay5nb3YucGw=[ECODE]