Obligatory decisions in Polish competition law: Procedural and systemic problems – Marcin Mleczko

The Institute of Legal Sciences of the Polish Academy of Sciences has published another electronic monograph from the ‘Frontier Research’ series: a publication by Marcin Mleczko entitled Obligatory decisions in Polish competition law: Procedural and systemic problems.

The study is devoted to the institution of commitment decisions in competition limitation cases and to the most important procedural and systemic problems associated with it that occur under Polish law. The institution of the commitment decision (regulated in Article 12 of the Competition and Consumer Protection Act) is a complicated legal construct, the application of which shows that it has become an indispensable instrument of competition law. Commitment decisions are generally favourable for both companies and the issuing authority. This institution is attractive to entrepreneurs because, for example, no financial penalty is imposed, no infringement is found and the case is resolved faster, which can have a positive effect on the company’s image. For the President of the Office of Competition and Consumer Protection (OCCP), the benefits may come from the ability to change the market faster and restore competitive conditions, cost savings and resources that can be allocated to detecting other violations.

The author presents the most important commitment decisions issued so far by the President of the OCCP and analyses them from the angle of procedural correctness and compliance with optimal competition law policy. He suggests suitable solutions to the current procedural and systemic problems and puts forward a thesis that systemic problems are inherent in the institution of commitment decisions. The author attempts to answer questions about the nature of the dialogue between the President of the OCCP and businesses in the proceedings for issuing a commitment decision; whether it is a dialogue between equal entities; whether issuing a commitment decision means that a businessman admits to a prohibited practice; and how the President of the OCCP can react to false commitments made by a businessperson.

One of the most important aspects of optimal use of commitment decisions is that they deter potential infringers from anti-competitive practices. The importance of this element in the institution of commitment decisions is undoubtedly lower than in other instruments used in the litigation model. The author also draws attention to the issue of reduced legal certainty connected with issuing commitment decisions. The low evidentiary requirement of plausibility often results in brief justifications being issued by the President of the OCCP. They do not provide valuable guidelines for the future, either for other entrepreneurs or the institution. Instead, they are inspected only very rarely or not at all. The President of the OCCP, while exercising broad discretion, must each time assess the specific nature of the case and determine whether a binding decision can be issued at the expense of decreasing legal certainty.

In his editorial review, Dr hab. Paweł Podrecki, Professor at the Institute of Legal Studies of the Polish Academy of Sciences, pointed out the significance of the publication for developing research on the effectiveness of competition protection mechanisms. He noted that:

‘it is worth mentioning that in the summary of his findings, the author lists the benefits of commitment decisions for entrepreneurs, which result, in particular, from the absence of a financial penalty, the absence of infringement and a faster conclusion of the case. The advantages in terms of the legal system, in turn, include the possibility of a quicker change in the market and restoration of competition, while saving the costs and resources of the antitrust authority. The author also formulates the thesis that systemic problems are inherent in the institution of commitment decisions. These research findings should be regarded as valuable and their presentation as original. The work organises the existing knowledge and critically evaluates the institution, which may prove to be a more effective tool for law enforcement.’

Autor: Marcin Mleczko
Recenzje: dr hab. Paweł Podrecki, prof. INP PAN
Seria wydawnicza: Frontier Research
ISBN: 978-83-66300-16-3
DOI: 10.5281/zenodo.3754282
Ilość stron: 59

Publikacja wydana w modelu Open Access na licencji CC-BY 4.0 jest dostępna w e-Bibliotece Prawniczej.

Publikacja wydana w modelu Open Access na licencji CC-BY 4.0 w e-Bibliotece Prawniczej.