A refusal to grant access to a grid within the provision of crude oil transfer services as an example of a prohibited abuse of a dominant position in the EU and Polish competition law

Aim: The paper discusses cases in which a refusal by an energy enterprise to connect other enterprises to the network is treated as a prohibited abuse of the enterprise's dominant position and, equally, will represent behavior prohibited by art. 12 of the Treaty on the Functioning of the European Union and by art. 9 par. 2 item 2 of the Competition and Consumer Protection Law as well as legal consequences of such refusal. It is important to pinpoint such cases since the EU sectoral regulation does not provide for obligating any undertakings which manage and operate oil pipelines to enter into contracts with other undertakings such as contracts on connecting into their network or contracts on providing crude oil transfer services. Conditions for accessing oil pipelines and selling their transfer capacities are determined by the owners of the networks: private oil companies in the countries across which the pipelines are routed. These conditions are not governed by the EU law. Furthermore, the very obligation of connecting other entities to own network by energy undertakings operating in the oil transfer sector in Poland will only arise from generally applicable provisions of the Polish competition law. Design / Research methods: The purpose of the paper has been reached by conducting a doctrinal analysis of relevant provisions of Polish and EU law and an analysis of guidelines issued by the EU governing bodies. Furthermore, the research included the functional analysis method which analyses how law works in practice. Conclusions / findings: The deliberations show that a refusal to access the network will be a manifestation of a prohibited abuse of a dominant position and will be a prohibited action always when the dominant's action is harmful in terms of the allocation effectiveness. It will be particularly harmful when delivery of goods or services objectively required for effective competition on a lower level market, a discriminatory refusal which leads to elimination of an effective competition on the consequent market, a refusal leading to unfair treatment of consumers and an unjustified refusal. Originality / value of the article: The paper discusses the prerequisites which trigger the obligation to connect entities to own network by energy undertakings operating in the oil transfer sector. The obligation has a material impact on the operations of the oil transmitting undertakings, in particular on those who dominate the market. The regulatory bodies in the competition sector may classify a refusal of access to own network by other enterprises as a prohibited abuse of the dominant position, exposing such undertakings to financial consequences.Implications of the research: The research results presented in the paper may be used in decisions issued by the President of the OCCP and in judgement of Polish civil courts and EU courts. This may cause a significant change in the approach to classifying prohibited practices to prohibited behavior which represent abuse of the dominant position. The deliberations may also prompt the Polish and EU legislator to continue works on the legislation.

Bid rigging in public procurement market according to the decisions of the President of the Office of Competition and Consumer Protection

Aim: In the practice of awarding public contracts, sometimes the behavior of market actors, instead of competing with other entities, are aimed at illegal cooperation, including bid rigging. The above shows that healthy competition is not possible without efficient market control. In public procurement market this control is, primarily, carried out by public procurement entities: the President of the Public Procurement Office (Prezes UZP) and the National Appeal Chamber (KIO), and furthermore by President od the Office of Competition (Prezes UOKiK) and Consumer Protection and the Court od Competition and Consumer Protection. and Consumer Protection (SOKiK). The interesting issue is how the activities of the President of Office of Competition and Consumer Protection targeted to contend with bid rigging affects on the activities of President of the Public Procurement Office (Prezes UZP) or the National Appeal Chamber (KIO). Design / Research methods: analysis and comparison decisions/ judgment issued by the President of the Public Procurement Office, National Appeal Chamber, the President of the Office of Competition and Consumer Protection and the Court of Competition and Consumer Protection. Conclusions: The analysis has shown that the existence of specificities in the activities of the decision-making bodies and the judgments examined. However, in keeping with the specificity of the forms and objectives of control, these entities should cooperate, to a greater extent than before. Expanding the scope of cooperation would make it possible to better contend with bid rigging without changing the competition protection model. The introduction of institutionalized instruments for cooperation between the authorities seems to be valuable in terms of system solutions. Value of the article: The main value of the article is the comparison of selectively selected decisions and judgments representative of the problem under consideration and their comparative analysis in order to achieve the research objectives. The article deals with issues relevant to both public procurement practitioners and the state bodies dealing with procurement matters.

Concentration of entrepreneurs on the pharmaceutical market: selected issues

Aim:The article has been selected due to the need to determine the legal basis for the consolidation of entrepreneurs on the pharmaceutical market and to identify the difference from the common pattern established by the regulations set forth in the Competition and Consumer Protection Act dated 16 February 2007. The selection of an enactment (the Competition and Consumer Protection Act or the Pharmaceutical Law Act) as the appropriate basis for ruling shapes the legal status of an entrepreneur on the pharmaceutical market, in particular with respect to selecting specific remedies. Design / Research methods:The text of enactments was analyzed using mainly the linguistic method. The aim of the analyzed regulations and the system of values protected by law were also investigated. Conclusions / findings:The regulations concerning anti-competition consolidation on the pharmaceutical market set forth in the Pharmaceutical Law Acta are lex specialis with respect to solutions adopted in the Competition and Consumer Protection Act (this applies only to issuing a permit for running a retail pharmacy and a limited service pharmacy). These regulations are related with respect to content but, simultaneously, they differ with respect to the adopted consolidation criteria (qualitative criterion: the Competition and Consumer Protection Act, and quantitative criterion: the Pharmaceutical Law Act). The regulations set forth in the Competition and Consumer Protection Act apply also to consolidation on the pharmaceutical market since the obligation to report a consolidation intent is not specific to the industry in which the consolidation takes place. It means that President of the Office of Competition and Consumer Protection is competent to study the consolidation status and issue decisions related to consolidation on the pharmaceutical market, and entrepreneurs can appeal from the President’s decisions to the Regional Court in Warsaw. Originality / value of the article:The approach presented is not present in the current literature which is the main value of the article. The subject matter of the article can be interesting for entrepreneurs present on the pharmaceutical market and law practitioners.

The premise of the effect on trade among EU member states in projects concerning culture and heritage conservation within the framework of the implementation of the projects from EU funds – recommendations for judicial decisions

Aim: Public aid can be involved even in such peculiar public activity sector as culture and heritage conservation. Hence, the EU projects implemented in this area may be subject to legal restrictions on state aid. In this respect, particular legal doubts concerning state aid arise in the context of “impact on trade” premise. This situation is a consequence of both lack of clear definition thereof and the peculiar nature of culture projects. The present paper is aimed at identifying particular issues that ought to be taken into account when determining the possible impact on trade (recommendations for judicature). These issues aren’t actually defined in law, but only in few judgments and literature. Hence, there is a necessity to make further researches.Design / Research methods: Analysis of legal provisions, judgments and literature.Conclusions / findings: 1) It is practically impossible for relevant legal acts to encompass all possible instances of public aid in culture projects. Undoubtedly, judicature (both, of the ECJ and Polish administrative courts) attempts to fill in this peculiar gap by examining and resolving individual cases. 2) Nonetheless, the judicature is not able to account for all possible situations that can be encountered when implementing projects co-financed by the EU, either3) due to the specific nature of this project category, all the above-mentioned aspects and possible interrelations among them need to be considered in great detail. Therefore, each and every case has to be examined separately and individually 4) each of the elements should be examined in detail at every stage of determining whether public aid is granted in a given case (here: from the perspective of possible impact on trade) – both by beneficiaries of the EU funds as well as by institutions involved in management and control system and by administrative courts 5) in individual situations, the sequence of occurrence and intensity of individual elements may differ, which means that each and every case needs to be examined and resolved separately as regards the possible impact on trade and, consequently, the presence of public aid. Originality / value of the article: Contemplated problems are a subject of few judgments and literature. Value of this article is a scientific deepening of all discussed issues. This one is addressed to beneficiaries of the EU funds as well as to institutions involved in management and control system and administrative courts. Implications of the research: This article will enable beneficiaries and mentioned institutions and courts to interpret occurrence of public aid in above-mentioned projects in the appropriate way.

The Role of the competition protection authority in the French legal system

Aim: The purpose of the paper is presentation of a French body - Autorité de la concurrence - responsible for protecting competition. The paper will discuss its role, characteristic features and judiciary instruments available to the body. Furthermore, the aim of the paper is to place the above-mentioned body of the French economic administration in the pan-European system for protecting competition and pinpointing the competition policy mechanisms it uses. It is essential to analyse available legislation which applies to the institution. Design / Research methods: The core research method applied in the paper is a formal and dogmatic method which allows for identifying the content of applicable legal standards (including the rights and obligations of the body described in the paper and the entities administered by the body) as well as the rules (presented from the point of view of directives and/or with their description) which form the basis for the standards. In addition, the functional analysis method used to analyse how law works in practice was also used. Sources of French law and literature on the competition law were also analysed. Conclusions / findings: The author concluded that the complexity of economic mechanisms requires an extended and transparent system for maintaining correct operation of the competition protecting authorities and bodies in France. He believes that it is one of the foundations of a contemporary democratic state of law which guarantees delivery on the principles of legality and economic freedom. It was demonstrated that the mechanisms available to the French Competition Office comply with the European competition law and may have a positive impact on entrepreneurs' behaviour on the market. Originality / value of the article: The author believes that the topic of the paper is pertinent and original. So far, only few representatives of the public commercial law doctrine devoted their thoughts to the operation of the European competition bodies. What is more, conclusions from the paper may offer some suggestions to the Polish legislator who may adapt solutions used in French law and create a model of competition and sectoral regulation bodies. Implications of the research: An analysis of French legal standards may contribute to continuing research in the commercial administration and to the application of a comparative method in order to formulate some interesting conclusions. In addition, it may also encourage Polish researchers to take up the topic related to the operation of competition bodies also in other EU states.

Consequences of the restructuring of loans in Swiss francs in Poland in the light of consumer protection

Aim: The subject of the paper is to discuss the consequences of the changes in the legislation on mortgage loans in Swiss francs, proposed by the Polish Sejm in August 2015, to the situation in the banking sector and the economy. The topic is important because of the potential impact of such changes on Polish banking industry, and indirectly lower GDP growth rate. Design: The article tries to assess consequences for the sector in next 5 years using set of quantitative and qualitative indicators. Author utilized literature review, experts’ opinions selection, and desk research on statistics data. Conclusions / findings: The author concludes that legislators proposal will bring negative impact of PLN >1 bn net income of the banking industry a year in next 5 years. However, if the legislation will be passed according to KNF’s feedback, most of these costs will be mitigated due to spreading banks’ losses over many years. The paper might be interested to banking and public sector analysts, as it brings a new opinion in the ongoing discussion. However, it is one of several voices in the public debate. Originality / value of the article: The paper brings implications to the legislators and public sector observes, serving as an independent analyze of the topic. Its main limitation is lack of granular quantitative losses estimation for banks, based on a scenario approach, which could add more value added to banking analysts, helping them benchmark their internal assessments.

A model of protecting financial service clients in the UK

Aim: The purpose of the paper is to describe changes occurring in the UK in consequence of the financial crisis with regard to protecting financial service customers, which prompts towards the answer to the question about the optimum protection model when it comes to protecting financial market customers. The author analyses whether regulations in use in the UK are sufficient to ensure cohesion between the public supervision of the financial market and customer protection. In practice, these value may be in opposition. Design / Research methods: The basic research method used in the paper is analysing sources of law and the literature of the subject. Conclusions: The most recent financial market crises undermined the assumption that public and legal supervision is a sufficient tool preventing market turbulences. The financial market supervision should expand beyond professional financial service providers. At the same time, it is also necessary to ensure customer protection. Having conducted the research, the Author recognises that the model used to supervise the financial market and protect financial service customers adopted in the UK deserves to be multiplied on the basis of Polish law, with a particular focus on transferring the supervisory function to the central bank. Originality / value of the article: The topic is pertinent and important as, in the EU member states, adaptation of new legal solutions in the area of financial supervision is considered. However, the problem tackled in the paper has not received any wider coverage in the literature of the subject. The UK regulations may and, according to the author - should serve as a model for the Polish legislator who is planning to challenge the issue of organising supervision over the Polish financial market in the near future.

Between exercising of public powers and economic activity. The latest findings on the notion of entrepreneur made in the process of judicial review of the decision of the President of the Office of Competition and Consumer Protection

Aim: There is no doubt that public authorities may be directly or indirectly involved in economic activity. A traditional way of distinguish state activity which is not subject to the rules of the market is to decide when the state acts as public authority. In case of state activity two category of situations should be distinguished: these where the state is engaged in an economic activity (sphere of dominium) and these when the state acts by exercising of public powers (sphere of imperium). In the opinion of the author of the article, the distinction between imperium and dominium is still relevant. According to the Competition and Consumer Protection Act of February 16, 2007, an entrepreneur is inter alia natural and legal person, as well as an organisational unit without a legal status to which legislation grants legal capacity, organising or providing public utility services which do not constitute economic activity in the meaning of the provisions on freedom of economic activity. The President of the Office of Competition and Consumer Protection found that public authorities exercising their administrative powers (sphere of imperium) may be classified as entrepreneurs. In the recent decisions which were subject of judicial review the President of UOKiK decided that the National Health Fund – a state authority responsible for organization and management of health care services in Poland – is an entrepreneur in the meaning of the Polish law (act on competition and consumer protection). The aim of this article is to answer the question whether competition rules should be applied to the state activity in the imperium sphere. This article will focus on the notion of an entrepreneur (undertaking) in polish and EU law in the context of the activity of the state. Design / Research methods: The objective of the article is achieved through doctrinal analysis of the relevant rules of the Polish and EU law and analysis of the recent decisions issued by the President of UOKiK, as well as judgments of the EU Courts, concerning the possibility of qualification of the widely understood state as an undertaking (entrepreneur).Conclusions / findings: From the analysis of the same concept applied in polish and EU law clearly follows that public entities acting ‘by exercising public power’ or ‘in their capacity as public authorities’ (imperium sphere) should not be classified as entrepreneurs (undertakings) in the meaning of competition law. The main scientific value added of the article are the conclusions that the provisions on the protection of competition should be applicable only to the activity of the state in the dominium sphere and that the definition of an entrepreneur and business (economic) activity should be connected to the existence of a market. Originality / value of the article: Paper should be interesting for public authorities, as well as for lawyers, dealing with problems concerning of qualification of public entities in the context of the competition law. The results of the research may be applied for example in the decisions that would be taken by the President of UOKiK. The consequences of application of the findings of the research to practice may be a change of approach to qualification of public entities in the context of the provision of competition law.

Polish model of judicial review of decisions taken by the President of the Office of Competition and Consumer Protection

Aim: The research effort in the aspect of a model of a court control of a decision issued by the President of the Office for Competition and Consumer Protection is predominantly supported by significance and importance of applicable legal solutions in practice. The research was aimed at evaluating the model of court control of decisions of the OCCP President. Design / Research methods: Due to the scope of the research covered by the author, the core research methods is the dogmatic method. Because of the theoretical and legal nature of the considerations, the main method used in the research was the method of analytical and dogmatic legal research method. Conclusions / findings: The research shows that it is a complex process to assess the effectiveness of the model for court control of the OCCP President's decisions which is used, in particular in terms of ensuring full and effective guarantee and protection of entrepreneurs' rights. One should agree that the arguments raised by both proponents and antagonists of transformation of the applicable legal solutions seem justified. Observations from two systems: the model of a control exerted by common court and administrative courts in the context discussed in the paper leads representatives of case law to formulating justified demands for changing the existing model. Originality / value of the article: The unique nature of competition and consumer law cases is expressed in the hybrid nature of the proceedings run before the OCCP President and, later on, before common courts. The legislator determined the particular procedure for verifying the governance forms of the impact of the President, which is particularly justified by the nature of competition and consumer protection cases and classifying them formally to civil law cases. Proceedings before the competition and consumer protection court is the first instance proceedings with the purpose of recognising the technical aspects of the case in the light of the civil law provisions. The deliberations presented in the paper clearly lead to the conclusion that submission of the decisions made in competition protection cases to the control of common court is decisive for its scope and applied criteria and, except for legality, criteria such as usefulness, applicability or efficient management are also applied by court. Implications of the research: The deliberations presented in the paper may contribute to initiate works on the transformation of the model for controlling decisions of Polish competition bodies by court.

Decisions issued by the President of the Office of Competition and Consumer Protection regarding the imposition of penalty payments on entrepreneurs as a repressive sanction

Aim:The purpose of this paper is to draw attention to the nature of decisions issued by the President of the Office of Competition and Consumer Protection regarding the imposition of penalty payments on entrepreneurs for infringements of the Protection of Competition and Consumers Act of February 26, 2007, which is one of the indications of restrictions on economic freedom. Special attention has been paid to the criteria applied by the President of the OCCP for imposing penalty payments while indicating the changes introduced by amendments to the Act which came into force on January 18, 2015. Design / Research methods:Legal historical method, systematic and teleological interpretation, comparative law Conclusions / findings:Both the rules and the criteria required to be applied by the President of the OCCP when inflicting punishment are included in a catalogue of directives in Article 111 of CCPA. In the catalogue, the legislator attaches particular importance to the premise consisting in a breach of provisions of the law and a previous breach of the same legal act while other elements, separate for each type of breach, are specified later on, imposing on the President of the OCCP the obligation to consider both attenuating circumstances and aggravating circumstances when deciding on the degree (amount) of the penalty. Irrespective of the above, due to the open catalogue of circumstances affecting the gravity of the penalty, the President of the OCCP may also consider some circumstances indirectly implied in the act and developed by the judiciary decisions, which include the type of non-compliance or breach, the degree of violating the public interest, intentional or unintentional action orduration of the breach. Originality / value of the article:To signal criteria changes applied by the President of the OCCP for imposing penalty payments while indicating the changes introduced by amendments to the Act, which came into force on 18 January 2015.