- Has your national competition authority published guidelines on competition compliance programmes (“CCPs”)? If so, what are the key components of an effective CCP?
- Are there any recent cases in your jurisdiction where the NCA/competent courts have discussed the impact of CCPs?
- What arguments have been taken into account in relation to a CCP? Has the fact that a company has a CCP been assessed in terms of the effort made or the results achieved, i.e. the efficiency of the programme? Is the focus on future changes in CCPs or on existing programmes?
- Has the role of the management and/or employees of the company been assessed with respect to preventing, participating in, detecting and reporting violations, or remediating violations? Is there a link between the role of the company's management and/or employees and an effective CCP?
- Has the fact that an undertaking has a CCP been helpful in reducing a fine for an infringement of competition law? What facts, arguments or commitments were used to justify the reduction and what is the maximum reduction that can be granted? If a reduction is not granted, why not?
- Are CCPs (their adoption or updating) used as evidence for "self-cleaning" measures when an economic operator risks being excluded from a public procurement procedure for collusive behaviour?
- Please indicate any additional considerations / rules, trends that are important in your country in relation to CCPs.
- Are there legal developments on the horizon in relation to CCPs?
jurisdiction
1. Has your national competition authority published guidelines on competition compliance programmes (“CCPs”)? If so, what are the key components of an effective CCP?
The Polish Office of Competition and Consumer Protection (“Polish NCA”) has not issued any comprehensive guidance that would address the subject of CCPs. CCPs have occasionally been mentioned in communications or non-binding documents of the Polish NCA concerning other issues, e.g. in the context of recommendations related to labour market collusion, the Polish NCA mentioned that having a CCP is a good practice. In addition, over the years, various presidents of the Polish NCA have shared their views on CCPs. However, these views were informal and did not represent the official or comprehensive stance of the Polish NCA. The references mentioned are generally only at a high level and lack detailed explanations.
2. Are there any recent cases in your jurisdiction where the NCA/competent courts have discussed the impact of CCPs?
There have been cases in Poland where the Polish NCA has issued decisions in which it has referred to CCPs when discussing the appropriate level of a fine to be imposed (as described in point 3 below).
3. What arguments have been taken into account in relation to a CCP? Has the fact that a company has a CCP been assessed in terms of the effort made or the results achieved, i.e. the efficiency of the programme? Is the focus on future changes in CCPs or on existing programmes?
In a recent decision (No. DOK-2/2023 of 5 September 2023) concerning alleged obstructive searches by a well-known seller of coffee machines, the Polish NCA emphasised that conducting compliance training alone does not absolve a company from liability for competition law infringements. Specialised training on competition law should be implemented to ensure the effective integration of its principles within the company’s structure, rather than to shield the company from liability for actions by employees that may hinder the Polish NCA’s competition enforcement efforts.
Furthermore, in decision No. DOK-3/2022 of 29 December 2022, which concerned an alleged abuse of a dominant position by the largest marketplace platform in Poland, the Polish NCA highlights that cooperation with the NCA during proceedings, including proposing commitments or enhancing CCPs, does not affect the assessment of liability. According to the Polish NCA, the existence of a CCP is regarded as neutral when determining fines for competition law infringements.
4. Has the role of the management and/or employees of the company been assessed with respect to preventing, participating in, detecting and reporting violations, or remediating violations? Is there a link between the role of the company's management and/or employees and an effective CCP?
As highlighted in point 3, the provision of compliance training does not absolve the company of its liability for the actions of its employees. Furthermore, as the current President of the Polish NCA pointed out during a panel discussion on CCPs (in 2022), the experience of Poland and other countries underlines the need for continuous and personal involvement, as well as ongoing oversight by members of the board, in order for CCPs to be truly effective. It is essential for any company to foster an environment where compliance officers can investigate, raise concerns and identify risks without fear of retribution or dismissal.
In Poland, individuals (managers) can now be fined up to EUR 460,000 (i.e. PLN 2,000,000) for allowing competition law infringements to be committed by their company. As highlighted by the Polish NCA in non-binding documents on competition policy from 2015 (when the introduction of fines for individuals was discussed), this should serve as an incentive for companies to establish an effective CCP.
5. Has the fact that an undertaking has a CCP been helpful in reducing a fine for an infringement of competition law? What facts, arguments or commitments were used to justify the reduction and what is the maximum reduction that can be granted? If a reduction is not granted, why not?
The Polish NCA encourages the establishment of CCPs. However, the main benefit highlighted is that an effective CCP will make it possible to avoid the risk of liability as quite simply there will be no competition law infringement.
Having a CCP in Poland has not contributed to a reduction in fines for competition law infringements and has been regarded as a rather neutral factor when calculating fines. The other way to achieve a reduction in fines (discussed in public statements made by the Polish NCA) could be to include provisions for an immediate notification of any irregularities detected in the company (whistleblowing channel), which could enable the company and its managers to benefit from a leniency programme (if a leniency application was to be made).
6. Are CCPs (their adoption or updating) used as evidence for "self-cleaning" measures when an economic operator risks being excluded from a public procurement procedure for collusive behaviour?
The introduction or amendment of a CCP may serve as evidence of a “self-cleaning” measure when an economic operator is at risk of being excluded from public procurement procedures due to a competition law infringement.
Under Polish public procurement law, an economic operator can avoid exclusion if it demonstrates to the contracting authority that it has taken specific technical, organisational and personnel measures to prevent future offences, misconduct or improper conduct (the economic operator must also meet the other conditions set out in Polish law).
These measures include the establishment of a reporting and control system, the creation of internal audit structures to monitor compliance with laws, internal regulations or standards, and the introduction of internal liability and compensation arrangements for non-compliance. A significant number of these measures fall within the scope of a compliance system. In practice, the implementation of a CCP is often cited as one of the methods to adjust organisational structures and related supervision.
7. Please indicate any additional considerations / rules, trends that are important in your country in relation to CCPs.
CCPs remain a hot topic in Poland. However, there is no sign of any radical legal changes or changes in the current approach taken by the Polish NCA.
8. Are there legal developments on the horizon in relation to CCPs?
There are no immediate legal developments expected for CCPs in Poland.
