1. Development of Competition Enforcement in Poland – 2009 Commitment Decisions Morvan Le Berre morvan.leberre@wardynski.com.pl Competition Enforcement in the Recently Acceded Member States Second annual conference, Brno, 23 April 2010 

2. 2 What’s new in 2009? – Anticompetitive practices  Appeal decision in the first leniency application Polifarb (UOKiK decision of 18 September 2006)  Competition court decision overturns the UOKiK interchange fee decision – appeal heard on 22 April 2010 Credit card (UOKiK decision of 29 December 2006)  Decisions on pricing agreements in the context of copyright licensing and motorway concessions  Commitment decisions regarding a vertical price fixing and a horizontal agreement

3. 3 What’s new in 2009? – Abuse of dominance  Fine for discrimination against non-regular customers Lasy Panstwowe (Office of National Forests) 29 December 2008  Fine for discrimination and refusal to deal in rail freight PKP Cargo - 7 July 2009  Fine for discrimination of providers based on « continuity » Narodowy Fundusz Zdrowia (National Health Fund) 10 July 2009

4. 4 What’s new in 2009? – Merger control  Prohibition of three concentrations on the basis of the market definition and of prospective market development Rieber Foods Polska / FoodCare – 8 October 2009  Fine for delayed satisfaction of merger conditions. Carrefour - 28 August 2009  Conditional clearance of a merger with sell-offs and ceasing of sales over time (food production sector) Agros Nova / Kotlin - 25 February 2009

5. 5 Why discuss Commitment decisions?  Commission working paper on Regulation 1/2003 (SEC (2009) 574 final)  Most EU Member States have Commitment decision rules  Commitment decisions are increasingly used (and Poland seems to lead the trend)  Compare how Competition authorities use their discretion  Convergence of procedures?

6. 6 Commitment decisions - current rules Article 12 - Competition and Consumer Protection Act  The President of UOKiK adopts a decision requiring (an) undertaking(s) to follow proposed commitments  The decision may include deadlines and reporting obligations  The decision removes the risk of fines and closes the investigation  The decision may be revoked if (i) based on incomplete or false data, (ii) if the conditions are not fulfilled or (iii) if circumstances change, upon agreement with the undertaking(s) concerned

7. 7 Commitment decisions – current practice  Over 40 Commitment decisions adopted since 2004  No commitment decision if breach proven/late proposal Ex Lasy Panstwowe (Office of National Forests) But see decision Polkomtel - 13 November 2009  Commitment decisions available for all infringements Ex Xella and others – 4 July 2008

8. 8 Commitment decisions – Current uncertainties  Scope of the commitment - any exclusions?  Status of the applicant  Status of third parties and damage claimants  Commitment procedure – publication of initial assessment?  Commitment and Leniency procedures

9. 9 EU Commitment decisions (1)  Commission may accept commitments from undertakings (Article 9 of Regulation 1/2003)  Commission must find an infringement based on a « preliminary assessment »  Commitments are offered by the undertaking(s) and may be negotiated  Commission required to publish a summary of the facts and of the envisaged Commission decision and call for comments

10. 10 EU Commitment decisions (2)  Substantive requirements  Preliminary Assessment of the case  Study of the market – based inter alia on third party comments  Assessment of the offer and proportionality  Not available for the most serious breaches  Procedure  Right to be heard  Publication of « concise summary »  At least one month for third party comments  Protection of business secrets  No access to the file

11. 11 EU Commitment decisions (3)  Opinion of Advocate General Kokott (C-441/07 P – De Beers)  Commission analysis of the proposed commitments  Application of the principle of proportionality  Status of undertakings as « parties concerned » or « interested third parties » and related rights

12. 12 The future of Commitment decisions  Convergence of Commitment decision procedures?  Role of the Commission (Article 11(4) of Regulation 1)?  Balance between discretion and transparency?  Involvement of third parties?