VOL.
2012, 5(6)
Competence of Common Courts in Poland
in Competition Matters
by
Aleksander Stawicki*
CONTENTS
I.
Introduction
II.
Mission statement
III.
Specificity of competition proceedings
IV.
Current views on the role of competition courts
V.
Key problems with the current approach
VI.
In search of a...
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VOL. 2012, 5(6) Competence of Common Courts in Poland in Competition Matters by Aleksander Stawicki* CONTENTS I. Introduction II. Mission statement III. Specificity of competition proceedings IV. Current views on the role of competition courts V. Key problems with the current approach VI. In search of a ‘third way’ VII. Proposals for change Abstract The main aim of this article is to present current judicial practice, concerning hearing cases stemming from appeals of Polish Competition Authority decisions. The relevant court tends to review the cases only on merits, omitting to address procedural infringements, clearly stated by the parties in appeals. In author’s opinion this common practice does not have a legal leg to stand on. Author analyses relevant laws and precedents pointing out, that full review of the decision is Court’s duty, which could not be neglected. Furthermore, according to ECHR rulings procedural guaranties should be ass
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VOL.
2012, 5(6)
Standard of Judicial Review of Merger Decisions
Concerning Oligopolistic Markets
by
Jan Szczodrowski*
CONTENTS
I.
Introduction
II.
Standard of judicial control – a definition and theoretical framework
III.
Standard of judicial review in EU jurisprudence on mergers in
oligopolistic markets
1.
Kali &...
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VOL. 2012, 5(6) Standard of Judicial Review of Merger Decisions Concerning Oligopolistic Markets by Jan Szczodrowski* CONTENTS I. Introduction II. Standard of judicial control – a definition and theoretical framework III. Standard of judicial review in EU jurisprudence on mergers in oligopolistic markets 1. Kali & Salz: errors of fact and errors of law in its early form 2. Airtours 3. Sony/BMG – Impala 3. 1. The judgment of the General Court 3. 2. The judgment of the European Court of Justice IV. Polish perspective V. Conclusions Abstract This article analyses the way in which standard of judicial review of the European Commission’s (EC) decisions concerning oligopolistic markets was exercised by EU judiciary. In the recent years we could observe an increasing role played by the GC and the ECJ in shaping the legal framework in which mergers are assessed. In fact, the EU judiciary has not only extended the previously narrow scope of the
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VOL.
2012, 5(6)
The Scope of Application of the Provisions of the Administrative
Procedure Code in Competition Enforcement Proceedings
by
Rafał Stankiewicz*
CONTENTS
I.
Opening remarks
II.
Difficulties in the practical application of composite procedural
regulations
III.
Protection of businesses’ individual rights...
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VOL. 2012, 5(6) The Scope of Application of the Provisions of the Administrative Procedure Code in Competition Enforcement Proceedings by Rafał Stankiewicz* CONTENTS I. Opening remarks II. Difficulties in the practical application of composite procedural regulations III. Protection of businesses’ individual rights in antimonopoly proceedings and application of the provisions of the Administrative Procedure Code IV. The direct application of the provisions of the Administrative Procedure Code V. Application of the provisions of the Administrative Procedure Code, with modifications VI. The scope of referrals to the Civil Procedure Code in matters of evidence (Article 84) VII. Conclusions Abstract The main premise of this article is an attempt to determine the scope of application of the provisions of the Administrative Procedure Code (KPA) in antimonopoly proceedings. The legislator has introduced an extensive system of norm-referenced proceeding p
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EU Courts’ Jurisdiction over and Review
of Decisions Imposing Fines in EU Competition Law
by
Mariusz Baran* and Adam Doniec**
CONTENTS
I.
Introduction
II.
Judicial control under Article 263 TFEU (i.
e.
‘plea of illegality’)
and under 261 TFEU (i.
e.
‘plea of unlimited control’)
III.
Pre-Guidelines era on...
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EU Courts’ Jurisdiction over and Review of Decisions Imposing Fines in EU Competition Law by Mariusz Baran* and Adam Doniec** CONTENTS I. Introduction II. Judicial control under Article 263 TFEU (i. e. ‘plea of illegality’) and under 261 TFEU (i. e. ‘plea of unlimited control’) III. Pre-Guidelines era on control of Commission’s decisions imposing fines IV. Adoption the Guidelines by the European Commission – consequences for the jurisdiction of the EU Courts V. Unlimited jurisdiction: what does it mean? VI. Breach of fundamental rights – is there a threat? 1. Fundamental rights in EU competition law proceedings – a brief overview 2. Multiple sources of fundamental rights in competition law proceedings 3. The character of the competition law proceedings – the invocation and applicability of particular rights 4. Meeting ECHR standards: the Court of Justice of the European Union – a judicial body with ‘full jurisdiction’? 5. Another criterion
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VOL.
2012, 5(6)
Can the Right To Be Heard Be Respected without Access
to Information about the Proceedings?
Deficiencies of National Competition Procedure
by
Maciej Bernatt*
CONTENTS
I.
Introduction
II.
Procedural framework regulating the right to be heard
1.
The general character of Polish competition procedure
2....
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VOL. 2012, 5(6) Can the Right To Be Heard Be Respected without Access to Information about the Proceedings? Deficiencies of National Competition Procedure by Maciej Bernatt* CONTENTS I. Introduction II. Procedural framework regulating the right to be heard 1. The general character of Polish competition procedure 2. Regulation of the right to be heard III. Access to information about the proceedings 1. General comments 2. Information about the explanatory proceedings 3. Information about objections 3. 1. Obligation to pass information about the objections 3. 2. Information about the objections in proceedings concerning practices restricting competition 3. 3. Information about competition concerns IV. Access to evidence 1. Access to evidence in proceedings concerning concentration 2. Access to evidence versus access to case file 3. Justification of the decisions vs. the protection of business secrets V. Conclusions * Maciej B
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VOL.
2012, 5(6)
The EMPiK and Merlin concentration prohibition:
Would the European Commission reach a similar verdict?
Case comment to the decision of the President of the Office for
Competition and Consumer Protection of 3 February 2011 –
Merlin.
pl S.
A.
and NFI EMPiK Media & Fashion S.
A (DKK-12/2011)
CONTENTS
I....
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VOL. 2012, 5(6) The EMPiK and Merlin concentration prohibition: Would the European Commission reach a similar verdict? Case comment to the decision of the President of the Office for Competition and Consumer Protection of 3 February 2011 – Merlin. pl S. A. and NFI EMPiK Media & Fashion S. A (DKK-12/2011) CONTENTS I. Introduction II. Relevant markets 1. UOKIK’s definition of the relevant markets 2. Allegations that the relevant markets were wrongly defined 2. 1. The purchasing process via traditional distribution channels and via the Internet 2. 2. Consumers’ characteristics III. Assessment of the concentration’s effect on competition 1. Market shares 2. Time factor in relation to the market of electronic trade IV. Breaches of procedural rules V. Conclusions I. Introduction On 3 February 2011, the President of the Office of Competition and Consumer Protection (the Polish national competition agency, hereafter referred to as the UOKiK
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VOL.
2012, 5(6)
The ne bis in idem Principle in Proceedings Related to AntiCompetitive Agreements in EU Competition Law
by
Przemysław Kamil Rosiak*
CONTENTS
I.
Introduction
II.
The ne bis in idem as a general principle of EU law
1.
The ne bis in idem principle in the Convention’s system
2.
The ne bis in idem...
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VOL. 2012, 5(6) The ne bis in idem Principle in Proceedings Related to AntiCompetitive Agreements in EU Competition Law by Przemysław Kamil Rosiak* CONTENTS I. Introduction II. The ne bis in idem as a general principle of EU law 1. The ne bis in idem principle in the Convention’s system 2. The ne bis in idem principle in the constitutions of the EU Member States III. The ne bis in idem principle in the Charter of Fundamental Rights IV. The ne bis in idem principle in EU competition law 1. General remarks 2. Role of the European Commission and of NCAs in the application of the ne bis in idem principle 3. Collusion in proceedings conducted by the Commission and by national competition authorities and in penalties in EU proceedings and in national proceedings of Member States 4. Evolution in interpretation of the conditions for the application of the ne bis in idem principle 4. 1. Identity of the legal interest protected 4. 2. Identity of e
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VOL.
2012, 5(6)
Procedural Autonomy of Member States and the EU Rights of
Defence in Antitrust Proceedings
by
Krystyna Kowalik-Bańczyk*
CONTENTS
I.
Introduction
II.
Procedural autonomy
III.
Procedural autonomy in national antitrust proceedings where EU law is
applied (decentralised EU proceedings)
IV.
Rights of...
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VOL. 2012, 5(6) Procedural Autonomy of Member States and the EU Rights of Defence in Antitrust Proceedings by Krystyna Kowalik-Bańczyk* CONTENTS I. Introduction II. Procedural autonomy III. Procedural autonomy in national antitrust proceedings where EU law is applied (decentralised EU proceedings) IV. Rights of defence in EU antitrust proceedings before the European Commission (centralised EU proceedings) V. Application of the acquis ‘rights of defence’ in decentralised EU antitrust proceedings 1. Arguments for application of the acquis ‘rights of defence’ in national proceedings with an EU element 2. Arguments against application of the acquis ‘rights of defence’ in national proceedings with an EU element VI. Should the acquis on ‘rights of defence’ be respected in purely national proceedings? VII. Conclusions Abstract The general rule concerning the application of EU law in the Member States is that, unless the procedural issues are directly
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VOL.
2012, 5(6)
Concurrence of wills – a necessary ingredient of an agreement
restricting competition.
Case comment to the judgment of Court of Competition
and Consumer Protection of 8 February 2011 –
ZST Gamrat S.
A.
v President of the Office of Competition
and Consumer Protection
(Ref.
No.
XVII Ama 16/10)...
Más
VOL. 2012, 5(6) Concurrence of wills – a necessary ingredient of an agreement restricting competition. Case comment to the judgment of Court of Competition and Consumer Protection of 8 February 2011 – ZST Gamrat S. A. v President of the Office of Competition and Consumer Protection (Ref. No. XVII Ama 16/10) Introduction The case in question represents just one of several legal actions that ZTS Gamrat and its distributors undertook against the decision of the Polish national competition agency, the President of the Office of Competition and Consumer Protection (hereafter, UOKiK President, after the Polish acronym). This legal battle commenced in 2005 and still has not been resolved, as the judgment of the Court of Competition and Consumer Protection (hereafter, the SOKiK) discussed in this comment has been appealed by the UOKiK President. The Court of Appeals, in its judgment of 20th October 2011 (ref. no. VI ACa 564/11), referred the case back to the
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VOL.
2012, 5(6)
Exchange of Information and Evidence between Competition
Authorities and Entrepreneurs’ Rights
by
Mateusz Błachucki* and Sonia Jóźwiak**
CONTENTS
I.
Introduction
II.
Exchange of information and evidence in merger cases
1.
Information exchange in international soft law documents
1.
1.
ICN...
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VOL. 2012, 5(6) Exchange of Information and Evidence between Competition Authorities and Entrepreneurs’ Rights by Mateusz Błachucki* and Sonia Jóźwiak** CONTENTS I. Introduction II. Exchange of information and evidence in merger cases 1. Information exchange in international soft law documents 1. 1. ICN (International Competition Network) 1. 2. ECA (European Competition Authorities) 1. 3. EU (European Union) 2. Waivers 3. Exchange of information in merger cases under Polish law III. Exchange of information and evidence in antitrust cases 1. Information exchange in international soft law documents 2. Exchange of information within the European Competition Network 2. 1. Legal basis, practical methods and types of information exchanged 2. 2. Potential problems with respect to the requirements of due process IV. Conclusions Abstract This article concentrates on the exchange of information and evidence between competition authoritie
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Polonia
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