INTRODUCTION – SOURCE AND AIMS OF THE ACT
The act constitutes an implementation of the so-called EU ECN+ Directive, i.e. Directive of the European Parliament and of the Council (EU) 2019/1 of 11 December 2018, to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market. In doing so, it seeks to approximate the legal provisions in this scope across countries.
On 17 April 2023, the act was submitted to the President for signature. Earlier, the Sejm (Polish lower chamber of Parliament) had rejected the Senate’s (Polish higher chamber of Parliament) veto. In the Senate’s view, the act violates the procedural guarantees of undertakings, weakens the legal professional privilege, contains disproportionate solutions and violates the fundamental principles of the rule of law. In its view, moreover, the act, in implementing the Directive, does so in an imprecise manner or over-interprets European Union law.
Below we present the key changes introduced by the act.
LIABILITY OF PARENT COMPANIES FOR THE ACTIONS OF THEIR SUBSIDIARIES
The new regulations shall govern the liability of parent companies for the actions of their subsidiaries. If an undertaking violates competition law, an undertaking exercising decisive influence over that undertaking will also be held liable. Decisive influence will mean the existence of economic, legal or organisational links, the effect of which is that the undertaking carries out or adapts to the instructions given to it by the undertaking exercising decisive influence. It should be noted that the notion of decisive influence is referred to in the definition of acquisition of control in the Act on Competition and Consumer Protection (the “Act”). It is worth emphasising that this refers to the actual exercise of this influence and not merely the potential (possibility of the influence being exercised).
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