Procedural Fairness In The Proceedings Before The Competition Authority Sprawiedliwosc Proceduralna W Postepowaniu Przed Organem Ochrony Konkurencji

The right to equal participation in the proceedings - In the fourth chapter of the book it is concluded that the proceedings before the CCP President are characterised by lack of equal access to the process. The status of the party is limited only to the undertaking against which charges have been raised. Differently to the solutions existing in the European Union law, competitors or other entities possibly harmed by the activity of the undertaking that allegedly violated competition law may not participate in the proceedings. What is more, when it comes to antimonopoly proceedings in cases of concentration, the status of the party is limited only to the undertaking that notifies the concentration to the CCP President. In the predominant part of the decisions the agreement for the concentration is given. As a consequence, the judicial control over these proceedings is excluded as there is no-one that would be interested in appealing the decision. The right of defence - In the fifth chapter of the book it is shown that in the proceedings before the CCP President and to some extent before the Commission, the right of defence is not properly respected. In the proceedings before the CCP President the lack can be observed when it comes to the guarantees of the presumption of innocence and the privilege against self-incrimination. Due to the lack of a specific regulation in the Competition Act, it can happen that undertakings are forced to make a confession of violation of the competition law. The right of defence can in practice be significantly limited as there is no clear legal basis for the protection in Polish competition procedure of legal professional privilege. There is clearly a need for the confidential treatment of information exchanged in the course of the legal aid provided by lawyers to the undertakings that allegedly violated the competition rules. Several problems can be observed when it comes to the inspections run by the CCP President functionaries. The presumption that inspections are only effective when run surprisingly and during the explanatory proceedings is wrong. What is more, the inspection is incorrectly understood - if the Competition Act is interpreted literally - to be admissible just because the CCP President is analysing the market structure and despite him/her not having any information whatsoever about any violation of law. Thus it is possible that so called fishing expeditions take place. Under the Polish and EU procedure, there lingers an unresolved question of legality of inspection on premises possessed by natural persons. The procedural guarantees of the privacy are not sufficient and thus there is a potential for abuse of this institution in the future. The right to protection of business secrets and other confidential information - The sixth chapter of the book is based on the presumption that in the proceedings before the competition authority there is a need for the protection of the information that is economically important for the undertakings. This refers to any undertaking that provided the CCP President with the economically valuable confidential information. In this respect both Polish and EU procedure protects information than can be qualified as business secrets. Under the Competition Act the CCP President is entitled to limit, where this is indispensable, the right to access to evidence contained in the case file, when rendering such evidence accessible would entail a risk that the business secret may be revealed. Unfortunately Polish legislation and jurisprudence, unlike EU one, does not properly balance the protection of business secrets with the safeguards of the right to be heard. Polish competition law fails to stipulate clearly what the limits of the protection of confidential information are in situations when the right to be heard of other parties of antitrust proceedings is at stake. There is also no clear legal basis in Polish law for the protection of the anonymity of those entities who submit a written notification to the CCP President concerning a suspicion that competition-restricting practice has taken place. The right to judicial review and judicial control over competition proceedings - The seventh chapter of the book deals with the right to judicial review and judicial control over the proceedings before the competition authority. Under Article 6 of the ECHR the decisions taken by administrative authorities must be subjected to subsequent control by a "judicial body that has full jurisdiction" over questions of facts and law. Polish model of judicial control over the proceedings before the CCP President raises doubts from the point of view of the requirements of "full jurisdiction". In particular - contrary to the EU courts - the court specialised in dealing with the appeals from the CCP President decision - the Court of Competition and Consumers Protection (the CCP Court), despite the legal basis for that contained in the Code of Civil Procedure, does not exercise sufficient control with respect to procedural infringements over the proceedings before the CCP President. In jurisprudence it is accepted that the CCP Court as first instance court entitled to decide the case on merits is not obliged to refer in details to the procedural objections raised in the appeal especially, if the submitted irregularities are not likely to be of a kind that influences the CCP President decision on its merits. Furthermore the Supreme Court specified that procedural irregularities concerning evidence should not lead to the revocation of the CCP President decision provided, that it is in line with the provisions of substantial law. In consequence the analysed jurisprudence of Polish courts in competition cases suggests that the CCP Court does not exercise sufficient control over possible breach of procedural rules by the CCP President. The author argues that the CCP Court should revoke the decision of the CCP President if essential procedural requirements of procedural fairness were violated and the CCP Court is not able to rectify them during judicial proceedings (e.g. by introducing and hearing new evidence) or when these irregularities could have influenced the CCP President decision on its merits. When the procedural rules concerning evidence were violated by the CCP President, the CCP Court should disregard such evidence and, in cases where not enough evidence is left to prove a violation of the Competition Act, it should change the CCP President decision and find no infringement. Such an approach seems to be in accordance with the Supreme Court jurisprudence. It is also pointed out that the two-week time limit for appealing the final decision of the CCP President to the CCP Court must be extended. Taking into account the complicated character of the competition cases as well as often limited knowledge of the parties about the details of the proceedings instigated against them, the current regulations disproportionally limit the right to judicial review.