Our lawyers have substantial experience in handling complicated competition and antimonopoly cases, involving both Polish and foreign companies, especially European Community entities, where the effects of their business transactions extended to Poland as so-called extraterritorial effects.
The cases pertained to several dozens of different relevant product markets, including the FMCG sector, television broadcasting (free-to-air, satellite and cable), pharmaceuticals, cement and concrete, fuel, software licensing, production of non-alcoholic and alcoholic beverages, tobacco industry, packaging industry, motor vehicle distribution, natural monopolies, municipal services, etc.
The substantive scope of the handled matters extended from abuses of the dominant market position (such as exclusion from market, tie-in obligations, predatory or excessive pricing) to prohibited restrictive arrangements (such as price-fixing cartels, resale price maintenance, foreclosures, bid-rigging, market sharing and the like).
Our lawyers also advised with respect to merger control notifications filed with the President of the Office of Competition and Consumer Protection. Some of the notified cases were exceptionally complicated, constituting examples of “3:2 mergers” (meaning that only two competitors out of the initial three remained in the market, once the notified transaction was executed). These notifications required detailed legal and economic analyses of the prospective effects of the merger on the relevant markets and for consumers. Where appropriate, we also prepared legal opinions to confirm the lack of notification obligations for a given transaction for different reasons; such as the turnover thresholds not being exceeded, the lack of a concentration effect (e.g. in fiduciary transactions), due to the special interpretation of turnover achieved by the capital groups, etc.
Our lawyers provided legal advice pertaining to the practical application of the antimonopoly law in everyday commercial activities, inter alia, by reviews and comments on competition-related clauses used in vertical agreements, such as distribution, licensing, franchising, car sales, etc. The legal services were performed both for organizers of sale networks (producers) as well as for distributors and dealers. In the same manner, our lawyers have experience in representing both licensors or franchisors, and licensees and franchisees.
Our experience also includes various “antimonopoly compliance” programs introduced both in single companies and on a larger, group scale. These programs have been tailor-made for the particular needs of a client, in order to provide a thorough review of all the activities involving legal risks of prohibitions and fines. As a result, specific procedures have been introduced or reviewed; for example, pertaining to the cooperation of the company’s staff with the regulator’s officials during the dawn raid. We have also developed a unique program of mock dawn raids, whereby the internal procedures are tested for loopholes and the obtained results serve as a tool to reinforce legal security in real situations.
Our lawyers have proven experience in the organization of antimonopoly workshops in various aspects of Polish and European Community laws, designed for all operational levels of a company, in particular the sales and marketing divisions. During our training sessions we present real-life cases which impact the legal situation of the company, either because the company initiated an antimonopoly case or because it had to protect itself as a defendant.
We present below some examples of proceedings or transactions in which our lawyers rendered their legal advice:
- the implementation of a selective distribution system of mobile telephony handsets and accessories;
- leniency proceedings;
- concentration on the market for specialized industrial products, notified to the President of the Office of Competition and Consumer Protection based on the “failing company” defense;
- legal assistance related to a sectoral investigation of the European Commission;
- representation of a pharmaceutical industry client in the proceedings concerning an allegation of resale price maintenance and horizontal price-fixing;
- assistance in merger control notifications involving many different markets, such as the production and distribution of beer, dairy products, the mass media, the production of edible fats, the market for digital platform broadcasting, motor vehicle production etc.;
- proceedings related to an abuse of the collective (joint) dominant market position in an oligopoly market;
- concentration on the market for pharmaceutical products presented based on the doctrine of “more economic approach”;
- concentrations on the media market and on the agricultural market described based on the doctrine of “economic efficiencies”;
- complex legal audit and series of trainings concerning antimonopoly compliance in a large, dominant entity;
- assistance in the implementation of a compliance program by an undertaking charged several times with accusations of serious antimonopoly violations;
- analysis of exclusive distribution agreements related to a product enjoying a significant market share;
- legal assistance to an industry association in various compliance aspects, especially related to the collection and processing of sensitive business;
- information transferred to the association by its competing members;
- the application of the “parallel conduct” doctrine in the defense of a client accused of price-fixing practices;
- representation of a client before the Supreme Court in a precedential dominance case concerning the definition of the local market for purchase of certain agricultural products.
Legislative activities (drafts and opinions)
Draft of the Guidelines of the President of the Antimonopoly Office concerning the application of the Law on Counteracting Monopolistic Practices to licensing and know-how agreements (Prof. Janusz Barta, Prof. Ryszard Markiewicz, Jarosław Sroczyński).
Participation of Jarosław Sroczyński in the following drafting projects and justifications of the first Polish regulations of the Council of Ministers.
The procedures related to applications submitted to the President of the Office of Competition and Consumer Protection concerning a resignation from imposition of financial fines or a decrease of the fines imposed (the leniency procedures).
The exemption of certain agreements concerning technology transfer from the prohibition of agreements restricting competition (the technology transfer block exemption regulation).
The exemption of certain agreements concluded between undertakings active in the insurance sector from the prohibition of agreements restricting competition (the insurance sector block exemption regulation).
Jarosław Sroczyński participated as “key expert” in an EU TACIS project on the development of Ukrainian competition and state aid laws. Various forms of assistance were offered in that project to the Antimonopoly Committee of Ukraine, including opinions, workshops, publications, drafts of legislation, working visits, software implementation, and the like. In addition to Mr. Sroczyński, the expert team was composed of Prof. dr. Helmuth Schröter and Mr. Joseph Gilchrist, both former directors of DG COMP. The team was led by Prof. dr. Arvid Deringer, one of the pioneers of European competition law.