Evolution of the law on protection of competition in Poland in the process of integration with the European Union (on the 20th anniversary of the Office of Competition and Consumer Protection in Poland)

Autore:Beata Pachuca-Smulska
Pagine:611-629
 
ESTRATTO GRATUITO
611
BEATA PACHUCA-SMULSKA*
EVOLUTION OF THE LAW ON PROTECTION
OF COMPETITION IN POLAND IN THE PROCESS
OF INTEGRATION WITH THE EUROPEAN UNION
1. Introduction
The problem of competition protection occupies a unique place
among issues concerning integration of member states within the
European Union. The integration issue has traditionally been closely
linked with economic cooperation, the latter being a foundation on which
the European Economic Community was laid. Competition is a sine qua
non condition for existence of a common market and development of
economic cooperation in the EU. A singular place of competition in the
system of law is confirmed by recognizing it as a fundamental principle
of market economy in the EU law1. The notion of competition occupies
also an important place in the Polish system of law. This status is
conferred above all by Article 20 of the Constitution of 1997, which
states that “a social market economy, based on the freedom of economic
activity, private ownership, and solidarity, dialogue and cooperation
between social partners, shall be the basis of the economic system of the
Republic of Poland”. Article 20 hence places social market economy at
the heart of Polish commercial regulatory framework. This principle is in
turn premised on freedom of commercial activity and a competitive
marketplace (competition).
This paper discusses selected problems in the evolution of the law on
protection of competition in Poland in the process of integration with the
European Union during the 20 years of existence of the Office for
Competition and Consumer Protection (hereinafter “the OCCP”) in
Poland. The integration process is understood here broadly (in terms of
time span covered) and covers the period from 1990 until 2007, i.e. from
the passage of the first modern antimonopoly act and creation of an
* Faculty of Law and Administration - University of Warmia and Mazury - Olsztyn,
Poland.
1 Article 3 point 3 of the Treaty of the European Union and the Treaty on the functioning
of the European Union (consolidated versions), EU Official Journal 2010/C 83/17. See also: M.
Krasnodebska-Tomkiel, Wspólnotowe prawo konkurencji. Skutki dla Polski. Warsaw 2006, p.
6; and more in M. Sitek, Instytucje i organy Unii Europejskiej w Wwietle postanowieM Traktatu
LizboMskiego, Józefów 2010.
612
independent Antimonopoly Office until the new Act on protection of
consumers and competition of 2007 and subsequent changes in 2010. The
paper discusses the evolution of aligning the Polish law to changes taking
place in the EU regulations primarily in the substantive law but also to
some extent in the procedural law.
The late 1980s and the early 1990s brought constitutional changes
and market reforms to Poland. The transition from a centrally-planned to
a marke t economy necessitated significant changes in the system of law. A
legal act of fundamental importance to introduction of a market economy
was the Act on counteracting monopolistic practices of 24 February 19902
(hereinafter also referred to as “the Antimonopoly Act”), which became law
on 13 April 1990. This act instituted an Antimonopoly Office (hereinafter
“the AO”) and created legal basis for combating monopolistic practices and
behavior. The original text was composed of only 33 Articles, reflecting
primarily provisions of Article 81 and 82 of the Treaty of Rome, (presently
Articles 101 and 102 of the Treaty on the functioning of the European
Union, Official Journal of Laws EU C115 of 9 May 2008).
2. The evolution of competition protection in Poland
It should be noted that the Antimonopoly Act was not the first such
regulation protecting competition in Poland. The genesis of competition
protection in Poland dates back as long ago as the interwar period.
Special mention should be given to a dual nature of competition
protection: one group of regulations dealt with protecting competition –
combating unfair practices in the market; the other group dealt with
antimonopoly issues. (The latter group will be subject of this analysis.)
Since the beginning of the 20th century the following four regulations
have been in force in Poland: the Act on combating unfair competition of
19263, which was effective until the new Act on combating unfair
competition of 16 April 19934 was passed. During the interwar period
Poland also had two antimonopoly regulations: The Act on cartels of 28
March 1933 (Journal of Laws 1993, No. 31, item 270 as amended) and
the Act on cartel agreements of 13 July 1939 (Journal of Laws 1939, No.
63, item 418 as amended). The latter did not come into force as World
War II began.
2 Dz. U. No. 14 (1990), item 88 as amended. Further in the text this act is also
referred to as the Antimonopoly Act or the Antimonopoly Act of 1990.
3 The Act of 2 August 1926 on combating unfair competition (Dz. U. 1930, No. 56,
item 467).
4 The Act of 16 April 1993 on combating unfair competition (original text Dz. U.
1993, No. 47, item 211 ; uniform text Dz, U. 2003, No. 153, item 1503).

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