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.
We have a long and broad experience in the field of copyright and related rights. To a large extent, these experiences are a result of the synergies between the scientific and research activities of Prof. Janusz Barta and Prof. Ryszard Markiewicz and the advisory practice of both professors and our other lawyers.
We advise in the general areas of intellectual property law, with particular emphasis on copyright and neighbouring rights and the protection of databases. MSM lawyers are specialists in such issues as the transfer of rights, various kinds of licenses for the use of exclusive rights, infringement liability, etc. We also advise with respect to the international aspects of copyright protection and the activities of the copyright and neighbouring rights collective management societies.
Our lawyers have considerable experience in software protection law. We have provided extensive advice in this area, representing both licensors and licensees.
The following examples present the consulting experience of MSM lawyers in the field of copyright and related rights:
- representing clients in court proceedings relating infringements or violations of intellectual property rights;
- legislative activity (drafting and expertise); Prof. Janusz Barta and Prof. Ryszard Markiewicz were experts of the Polish Parliament in the drafting of the Act on Copyright and Related Rights, as well as on the amendments of this Act;
- long-term and complex advice to one of the largest companies from the software industry, with a worldwide presence. The advice was related to a broad spectrum of licenses designated for different categories of licensees, implementation of new software products and provision of additional consulting and technical assistance services, etc.;
- advice on various legal aspects of “open source” software;
- evaluation of specific intellectual works as to their protected status under copyright laws (for example, such works as computer programs, games, expert opinions, technical drawings, graphs and tables, industrial designs, words, catchwords, web pages, notes and coins);
- the issue of recognition of architect’s rights in connection with an enlargement of a commercial centre;
- the issue of copyright protection of family house designs published in catalogues of typical housing projects;
- copyright protection of a trademark;
- the scope of an employer’s right to employees’ creative activity and the necessary content of the related copyright agreements;
- the interpretation of copyright law concerning the obligation to pay royalties by Polish broadcasters to foreign authors and performers;
- the reproduction of radio music programs in cafes and restaurants;
- the admissibility of free use of TV spots on an Internet portal;
- the issue of presenting artistic performances via the Internet;
- the rights of artists’ collective societies to demand remuneration for public performances;
- legal opinion concerning a withdrawal of Poland’s reservation to the Rome Convention concerning the exclusion of broadcasters’ obligations to remunerate authors and producers for broadcasting their phonograms published for commercial purposes;
- the issue of the dissemination of town plans for the purposes of the GPS system;
- the copyright and neighbouring rights issues related to re-emission via satellite;
- the legal implications of the officially approved remuneration tables for the exploitation of artistic performances subject to the collective management;
- legal opinion concerning the collective management of author’s rights in connection with exploitation of an audiovisual work;
- regulations pertaining to so-called “reprographic payments”;
- the rights of a movie screenplay author to remuneration for dissemination of the movie in new fields of exploitation;
- the issue of a producer’s copyright infringement in case a movie character is used in third party adverts;
- the issues of reactivation of protection in Poland of works created abroad;
- anti-piracy legal assistance in the field of computer software and computer games. This included the related cooperation with the Police, Public Prosecutor and customs authorities.
MSM also provides professional consultancy in the field of industrial property rights. MSM lawyers specialize in issues of transfer of rights, the provision of various types of licenses for the use of exclusive rights, liability for infringements etc.
MSM lawyers have experience in advising clients on concluding licensing agreements of industrial designs, representing both licensors and licensees.
The following examples present the consulting experience of MSM lawyers in the field of industrial property rights:
- trademark use with parallel imports of medicines;
- representing clients in court proceedings related to the protection of utility models;
- advising on licensing elements of the symbols and the names associated with the City of x and the protection of the legal interests of the city.
The long term practice of our lawyers in the field of consumer law comprises advice in matters decided by the President of the Office of Competition and Consumer Protection, the courts of law and the consumer arbitration bodies.
We advise on matters related to violations of the collective consumer interests and in individual violation cases, representing both consumers and undertakings charged with allegations of unlawful actions.
We advise on matters related to consumer bank loans, primarily concerning the obligatory content of contracts on consumer bank loans and the legal effects of contracts contrary to the provisions of the Law of July 20, 2001 on Consumer Bank Loans. In particular, we have been involved in analyzing the issue of so-called sanctions of free bank loan, stemming from Article 15 of the above-mentioned Law.
We also advise with respect to agreements concluded between undertakings and consumers (business-to-consumers relations, B2C), for example doorstep selling or distance sales agreements. We advise on the implementation of the voluntary codes of conducts and on class actions in consumer matters.
We present below several practical examples of matters related to consumer law, on which MSM lawyers rendered legal advice.
- advise for a company from the paints and coatings market concerning the marking of products in compliance with consumer law (providing the consumer with exhaustive and reliable product information);
- legal opinion concerning the allegation of applying abusive clauses in agreements with clients of brokerage houses;
- representation of clients before the Banking Arbitrator in matters related to the consumer bank loans;
- analysis of legal content of consumer bank loan agreements, concluded by a bank granting such loans;
- legal advise on the marking and advertising of food products;
- complex analysis of terms and conditions of the consumer guarantee, offered by a leading company from the production and distribution of computer printers business.
Legislative activities (drafts and opinions)
Mr. Jarosław Sroczyński participated in the preparation of legal expert advice to the first draft Law of August 23, 2007 on the Counteracting of Unfair Market Practices, within a legislative project of the President of the Office of Competition and Consumer Protection (implementation of the Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices).
We provide legal advice on the substantive and procedural issues connected with various acts of unfair competition. We also advise with respect to the injunction court procedures. The scope of our advice comprises such unfair competition practices as foreclosure of market access, designation of an enterprise and of a geographical origin, slavish imitation, infringement of trade secrets, charging of special fees for shelving a product and unfair advertising, including advertising prohibited in specific provisions.
Examples of cases on which MSM lawyers advised comprise the following:
- advice related to the publication of press advertisements deceptively similar to earlier advertisements of another undertaking;
- legal issues of imitation in the computer games industry;
- liability of the entity creating advertisements prohibited by law, such as advertisements of alcoholic beverages;
- advice on the counteracting of illegal imitations of packaging products;
- legal opinion concerning acts of unfair competition in the relations between two players in the publishing market.
Legislative activities (drafts and opinions)
Professors Janusz Barta and Ryszard Markiewicz were among members, and Jarosław Sroczyński was Secretary of, an Expert Commission set up by the President of the Antimonopoly Office, which prepared the draft and justification of the Law of April 16, 1993 on Combating of Unfair Competition.
- preparing a cassation appeal and representing an insurance industry client before the Supreme Court in a precedential case on whether the specification of essential terms of an order (so-called SIWZ) can be a copyrighted work;
- ongoing legal support in preparing offers in public procurement procedures,;
- verification of agreements on the grounds of the Public Procurement Law;
- legal assistance in preparing an appeal procedure before the National Appeals Chamber (KIO); developing an action strategy, analysis of the documentation provided by the contracting authority; identification of legal risks;
- legal opinion for an energy sector company regarding the qualification of legal services as social services, based on the provisions of the Public Procurement Law;
- legal consultancy for an information and telecommunication technology (ICT) entrepreneur concerning verification of the subject matter of public procurement (analysis of agreements, Terms of Reference, explanations), advisory services in connection with an appeal to the National Appeals Chamber (KIO);
- legal support for a company providing technological solutions in the area of verification of documents from the B2B platform and analysis of tender documentation for an appeal with the National Appeals Chamber (KIO);
- legal opinion for an energy company on the obligation to apply the provisions of the Public Procurement Law to designated power trading transactions;
- legal support and representation in proceedings before the National Appeals Chamber (KIO) of a heating company in public procurement procedures for the selection of a general contractor for construction works and for the selection of a contract engineer;
- legal opinion for an energy sector company on sectoral procurement;
- legal advice related to procedures for awarding public procurement contracts under EU projects; verification of the correctness of the execution and amendments of the contract;
- legal analyses for an electricity distribution company concerning the adopted solutions in the public procurement system;
- legal evaluation of the medical entity’s actions in the public procurement procedure;
- legal opinion for an energy company regarding the planned cooperation with external partners in terms of the public procurement obligations;
- legal services for an IT company regarding various aspects of procurement at different stages of proceedings;
- development and legal analysis of content published within the firma.gov.pl portal maintained by the Ministry of Economy;
- participation in a project of implementation of CRM (Client Relations Management), intended for a telecom company and developed jointly by a consortium of consulting, legal and computer technology firms;
- legal opinion on the scope of copyrights in relation to computer programs attached to an offer in a public procurement procedure;
- legal opinion on Copyright and Related Rights Act for court proceedings concerning the public procurement “Construction, implementation and maintenance of e-Taxes System with additional services” in the area of licenses, sublicenses and source codes;
- legal opinion on the interpretation of legal acts (Regulation of the European Parliament and the Council of the EU No. 537/2014 dated 16.04.2014, Act of 11.05.2017 on Statutory Auditors, Public Procurement Law), in connection with the need to develop by a company in the energy industry a procedure for the selection of an audit firm to audit financial statements;
- Emergency Notification System – Decision Support System of the State Fire Service – legal services for the executive consortium under a public procurement contract of the State Fire Service Headquarters;
- preparing comments to the Guidelines for co-financing collective transport on the grounds of public procurement law and antimonopoly law.
We have more than 10 years of practical experience in the field of personal data protection law, dating back to the entry into force of the first Polish Law on Personal Data Protection in 1997.
We provide extensive legal advice in personal data and privacy matters, including registration of personal databases with the Inspector General for the Protection of Personal Data, internal procedures of undertakings concerning the technical and organizational conditions of personal data processing, the procedures related to the documentation of personal data processing, personal database transfer agreements, the liability of entities administering the personal databases and entities hired to process personal data, etc.
The following cases may serve as examples of the experiences of M&S lawyers in this area of law:
- implementation of an information system for persons whose personal data were processed by a company from the computer software market, pertaining to the fact of processing and special rights stemming from the privacy laws;
- registration of personal databases administered by companies from various market sectors with the privacy regulator;
- legal opinion concerning compliance with the personal data provisions of practices of a bank, consisting in the collecting of personal data such as a person’s image, her/his parents’ names, etc., obtained from the identity documents of persons opening bank accounts;
- legal advice regarding the collection of so-called sensitive data from employees by an employer;
- the rights of persons listed on various “richest Poles rankings” to demand that their personal data be removed from such databases;
- the obtaining of a precedential decision of the Inspector General for the Protection of Personal Data, granting individual consent for the transfer of personal data to a third country (Article 48 of the Law on Personal Data Protection);
- a detailed compliance audit of a company processing personal data in the pharmaceutical sector, including a legal opinion on its conformity with the mandatory law;
- drafting and negotiating of personal database transfer agreements;
- agreements on the processing of personal data by entities participating in the US “Safe Harbor” program of ensuring the appropriate standards of personal data protection.„Safe Harbor”.
Legislative activities (drafts and opinions)
Professors Janusz Barta and Ryszard Markiewicz participated as experts in the legislative work related to the Law on Personal Data Protection.
M&S lawyers have advised clients on several precedential matters of the computer and Internet technologies laws. We have also provided legal opinions on several IT projects, where the applied Internet technologies directly affected the legal situation of the implementing company and its contractors, including consumers.
By way of examples, we can list the following matters relating to the computer and IT law in which our lawyers provided advice:
- participation in a large CRM (Client Relations Management) implementation project destined for one of the leading telecom companies, introduced jointly by a consortium of consulting firms, law firms and companies from the computer technology industry;
- day-to-day advice for companies running their own call centre;
- advice pertaining to the registration of Internet domains and the liability for so-called “deep links” to content on other webpages;
- legal analysis of an activity consisting of the collection of sales data of pharmaceutical products via specialized computer software;
- the tax issues related to income derived from software license agreements, where the license is used exclusively for the buyer’s own needs;
- the legal issues involved in offering “telephone rings” on computer networks.
Legislative activities (drafts and opinions)
Professors Janusz Barta and Ryszard Markiewicz participated as experts in the legislative work related to the Law on Services Rendered Via Electronic Means.
The lawyers of MSM have been advising on media law since the very beginning of the Polish free media market, i.e., since censorship was abolished. We advise both traditional and Internet media publishers, distributors, and radio and TV broadcasters.
In the television market, we have advised free-to-air, satellite and cable broadcasters. We have been engaged in the legal aspects of movie production, including animated movies and have provided opinions on the legal issues of dubbing and “colorizing” black-and-white movies.
The broad scope of M&S legal advice on media law comprises the following matters:
- day-to-day advice for a publishing house specialising in classical literature;
- legal opinions for television program producers;
- advice for a satellite television broadcaster in relation to the launch of an erotic program;
- legal opinion concerning the definition of a “program originally made in the Polish language”, as provided in the Law on Radio and Television Broadcasting;
- classification of certain activities on the mass media market as acts of unfair competition;
- legal relations of broadcasters with the Broadcasting Council, including the issue of broadcasting permits;
- legal justification to demand fees by television producers in relation to the exploitation by third parties of their exclusive rights in cable and non-cable re-emission;
- legal opinion on the qualification of certain television broadcasting content as “press” within the meaning of the Press Law and the resulting obligation to register such content as “dailies or periodicals”;
- legal advice concerning the broadcasting of transborder television programs;
- legal opinion on certain aspects of advertising beer in television programs and the sponsoring of media programs by beer producers and distributors;
- advice in matters related to the prohibited advertising published in various media.
Legislative activities (drafts and opinions)
Professor Janusz Barta participated in the drafting of a “citizens’ initiative” project of the Press Law.
- legal training for a large, international corporation on the assessment and counteracting of activities entailing legal risks of corruption, i.e., legal analysis of the practice and local customs of inviting business partners to special event meetings, sending Christmas and other gifts, etc.;
- legal analysis of the civil and administrative effects of corruption crimes, especially as regards the invalidity of public tenders.
- proceedings before the President of the Energy Regulatory Office concerning representation by a branch association grouping gas fuel purchasers of their common legal interest;
- proceedings before the President of the Office of Competition and Consumer Protection concerning the obligatory content of information and procedures for amending the rules of energy deliveries to individual buyers;
- elaboration of a legal scheme of actions necessary to benefit from the TPA (Third Party Access) principle by a transport company planning to change its energy supplier;
- legal analysis of the liability for breach of long-term energy supply contracts for exportation to third countries;
- advice related to an abuse of the dominant position of an energy supplier in the form of refusal of access to so-called essential facilities.
- qualification of various decisions of a municipality, adopted to facilitate a foreign “greenfield” investment, as a case of notifiable state aid;
- participation of Jarosław Sroczyński as expert of an advisory commission of an EU assistance program for the Antimonopoly Committee of Ukraine, set up to propose legal developments in the field of state aid laws.
- registration matters for Polish tourist agents;
- legal advice on specific clauses included in tourist service agreements.
- participation in a number of lawsuits concerning protection of personal rights such as right to privacy, right to reputation, honour, good name of legal entities;
- permanent advice to a leading publishing house on the risk of violation of personal rights by publications;
- advising a well-known person on infringement of personal rights by gossip portals;
- conducting negotiations with the publishers of a well-known magazine which ended with the payment of compensation in connection with the infringement of authors’ personal rights;
- assessing the risk of infringement of personal rights by publications created by state authorities;
- advising on planning projects (exhibitions, museums) with respect to the personal rights of living and deceased persons, including drafting the relevant agreements;
- conducting training on the protection of personal rights.