Legislation strengthening independence of the President of UOKiK is waiting to be adopted
The independence of the antitrust office is a key protection of the individual's economic freedoms against its discretionary authority.
In Poland, the independence of the President of UOKiK (Office of Competition and Consumer Protection) was guaranteed by the Act on Competition and Consumer Protection from 2000, specifying a 5-year long term in office of the president and protection from dismissal, apart from a closed catalog of circumstances. President of UOKiK lost his guarantees of independence in 2006, when the Act on State Personnel and High State Positions entered into force. They were restored by an Act on Competition and Consumer Protection of 16th of February 2007 which is in force now, but already in April 2007 the legislator decided to return to the state before the adoption of the new act, that is the lack of any guarantee of independence. As a result, the President of UOKiK may, in principle, be dismissed by the Prime Minister at any time and without any specific reason. This possibility has been criticized many times by representatives of legal doctrine, and it also seems to be inadequate in relation to the guarantee of tenure and dismissal protection of other regulatory authorities: the President of the Energy Regulatory Office, the President of the Office of Electronic Communications, or the President of the Office of Personal Data Protection.
The EU ECN+ Directive, adopted in December 2018, forces the government to change this situation. Although the directive should be implemented by February 2021, the national act has still not been submitted to Sejm. In this case, proceedings are pending against Poland for breach of the EU law, which as of 29th of September 2022 is at the stage of a reasoned opinion of the European Commission. The next possible step is to challenge the infringement to the Court of Justice of the European Union, including the possibility of applying for financial penalties.
In the area of the independence of national competition authorities, it obliges Member States to ensure that "they carry out their duties and powers neutrally and effective and with uniform application of the rules in mind, subject to proportionate requirements and without prejudice to strict cooperation between competition authorities within the framework of the European Competition Network.” It also contains standards on the independence of persons holding decision-making positions within the competition authority, as well as the requirement to ensure appropriate financial, technical and organizational conditions for the enforcement of the directive’s provisions.
Draft of the national amendment to the Act on Competition and Consumer Protection of January 2021 in the area introducing the abovementioned requirements should, in principle, be judged positively. New regulations introduce a 5-year long term of the President of UOKiK (with the possibility of being elected for one next term) and limit the possibility of dismissing the President by the Prime Minister before the end of it to enumerated circumstances. Norms have also been introduced into the draft, expressly prohibiting seeking or accepting instructions from the government or any other public or private entity, and obliging to exercise powers regardless of outside influences. It seems, however, that the drafter could have been more consistent and also enclose the independence of the President of UOKiK in granting the office's statute, and also limiting the number of terms of office to one.
The fact that increases the importance of the planned amendment is certainly the judgment of the Court of the European Union in the case of Sped Pro S.A. from 22nd of February, in which the Court found that the European Commission violated EU law by refusing to investigate the allegations raised by the Polish company, which related, among others, to the lack of independence of the President of UOKiK in relation to the executive. This is the first time that the EU Court has applied the mechanisms developed in connection with violations of the rule of law to a competition office, which may become a problem for the President of UOKiK in future competition cases. In this situation, the legislator should be particularly quick in adopting the provisions of the ECN+ Directive into the national legal order.
Contact to author:
Piotr Oliński, FOR Junior analyst
piotr.olinski@for.org.pl
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