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The issue of ‘dual quality food’ was publicized in 2015 by the Czech Republic and subsequently taken up by the Visegrad Group and the EU forum. It exemplifi es the wider problem of the undesirable phenomena present on the EU market of dual standards of branded products. The European Commission has published a set of guidelines on the application of current EU food law and consumer protection law against unfair market practices (Notice of 26 September 2017) to help national authorities determine whether a company violates EU law by selling dual quality products in different Member States. The aim of this article is to look at the current proposals to solve this problem in terms of their effectiveness, and to inquire into the existence of other possible solutions that ensure greater effi ciency.
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The article presents an outline of regulations concerning the abuse of significant market power in the sale of agricultural and food products in the Czech Republic. The article presents selected, most significant – in the author’s opinion – changes introduced as a result of the amendment of the Significant Market Power Act in the sale of agricultural and food products and its abuse. The publication focuses mainly on material and legal rules, in particular: the subjective and objective scope of the Act, the definition of ‘significant market power’, the list of practices that constitute an abuse of significant market power, and the assessment of when significant arket power is abused. The article provides also comments to the decision of the Czech Office for Protection of Economic Competition in the Kaufland case and the court judgment issued in this case, which undoubtedly affected the current shape of the Act.
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The article concerns the new EU Draft Directive (ECN+ Directive) – an initiative of the European Commission to modernize the decentralized system of EU competition law enforcement introduced by Council Regulation (EC) No 1/2003. The Draft Directive broadly interferes with the status and investigative powers of national competition authorities (NCAs). It establishes the minimum scope of the investigative and decision-making powers of NCAs, enhances convergence of many procedural aspects in this area and the power to impose sanctions. The aim of the article is to present, in a comprehensive way, the proposed act and to determine its possible impact on Polish competition law, if the Directive does come into force.
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This article analyzes latest EU case law on the liability of undertakings for infringements of competition law committed by their associates, understood as persons providing services to those undertakings. The article highlights important implications of the views expressed in the case law. In particular, the article discusses the extending of the concept of a single economic unit and accepting of an undertaking’s liability for certain third persons, which are independent from the single economic unit concept
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The article aims to discuss the applicable standards, as far as the scope of the protection of confidential information (business secrecy) is concerned, in proceedings before the Polish National Competition Authority (President of UOKiK) as well as in appeal proceedings before the Court of Competition and Consumer Protection (SOKiK). It also includes comments regarding both the application of the provisions themselves and their amendment. The analysis of current provisions covers planned changes corresponding with the implementation of Directive 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. The analysis advocates the introduction of solutions aimed at increasing judicial control over decisions issue by the President of UOKiK in cases based on a limitation of the right to inspect evidence ex officio, and strengthening control over compliance by the NCA. Due to the conflict between the rights of defence, the principles of open proceedings and a company’s right to protect confidentiality, the authors also propose to clarify the currently applicable provisions
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The article deals with the Court of Justice judgement in the Gasorbacase. Answering the preliminary question, the ECJ authorizes therein a national court to reach a different conclusion with respect to the practice at hand than the assessment found in a European Commission commitment decision, which was solely preliminary. The ECJ states that such a decision should be treated as evidence prima facie by a national court. The judgement constitutes a seminal input to the discussion on the relationship between private and public enforcement. Implications stemming from it, as well as the opinion of the Advocate General delivered in the case, have been included and thoroughly analysed in the paper
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The Article discusses the judgment of the Court of Justice in the Evonikcase and the key findings stemming from it. Considered in particular are the following issues: the scope of a Hearing Officer’s competences and legal grounds which leniency applicants may invoke in defence of their confidentiality claims. Further, the limits concerning the use of information provided in a leniency application are discussed, in particular the prohibition on including quotations from the leniency application and information enabling the identification of the source of other information provided in leniency documents. The author also examines the EU Commission’s broad competences to decide on how much information provided in a leniency application may be disclosed in the public versions of resulting infringement decisions. The current standard for the professional secrecy obligation is also considered. The author’s key conclusion is that the judgment reinforces the EU Commission’s discretion in deciding what information provided by a leniency applicant should be publicized, to the benefit of plaintiffs seeking damages in private enforcement actions. The judgment not only remains in line with the main principles of the Damages Directive, but also provides the EU Commission with new opportunities to stimulate the enforcement of competition law enforcement by way of private litigation. At the same time, however, it will increase uncertainty on the part of leniency beneficiaries. In the author’s view, although the decision to broaden the Hearing Officer’s competences is welcomed, chances are low that leniency applicants will defend their confidentiality claims with respect to information contained in the leniency documentation on the basis of the principle of justified expectations and equality of treatment.
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The article delves into the judgement of the General Court in the Trajektna case. The essential problem therein concerns a possibility to declare an assessment of market behaviour under national competition law as tantamount to an assessment under EU antitrust law. The very issue in this context is that domestic rules are equivalent to those in the Treaty. Nonetheless, such an approach may raise doubts since merely literal correlation does not suffice to render both legal bases exchangeable. Another relevant aspect is leaving a space to manoeuvre for national courts to act when the proceedings are carried out before them. This is indeed legitimate through the lens of the principle of loyalty with regard to the cooperation between national courts and the European Commission.
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The author analyzes the Judgment of the General Court (Seventh Chamber) of 17 November 2017 Gmina Miasto Gdynia and Port Lotniczy Gdynia-Kosakowo sp. z o.o. v. European Commission (Case T-263/15). The author also compares opinions of legal doctrine and judicature whether the failure to initiate a formal investigation procedure before the adoption of a decision constitutes a breach of a fundamental and absolute procedural requirement in the form of the right of interested parties to submit comments and adopt a position.
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The article presents the possibility of copying by inspectors of IT data carriers of the party under inspection, without selecting which information contained therein is necessity to achieve the aim of the inspection, and reviewing those records in the seat of the Polish Competition Authority (UOKiK) in the light of the judgment of the Competition and Consumer Protection Court dated 7 March 2017 no XVII Amz 15/17. This analysis is based on the interpretation of the applicable regulations under the Polish Competition Act in terms of the scope of an inspection and the inspected party’s rights protection. The author also sets out the jurisprudence of the Court of Human Rights and the Court of Justice of the European Union concerning the selection of information placed on IT data carriers and IT solutions currently available for use in this area. The article contains the assessment of the qualification by the court of the copying of IT data carriers by the Polish NCA as ‘securing the evidence’ indicating a number of premises that were not taken into account by the court in resolving the matter being the subject of the judgment
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The aim of this paper is to present the issue of gun jumping in the decisional practice of the EC and in EU case law. Outlined at the outset is the general framework of competition law obligations imposed on merging parties prior to obtaining a merger clearance. Presented next is the decisional practice of the EC and the judgments of EU courts regarding gun jumping. On that basis, the paper provides conclusions as to the scope of the standstill obligation and the current approach of the EC to fining gun jumping. The article also discusses possible solutions meant to increase legal certainty for undertakings in the field of gun jumping
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The paper provides an analysis of rules on staggered or creeping concentrations (i.e. group of transactions treated as a single transaction for the purposes of the assessment of an obligation to notify such operation to the European Commission) under the EU merger control system as well as the enforcement of these rules. The paper includes, inter alia, an analysis of rules on subsequent transactions as well as suggestions how to improve the rules on staggered concentrations
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The article presents selected aspects of preventive concentration control of enterprises. The goals and the different nature of this review (different from those usually applied to entrepreneurs) are particularly interesting and important from the standpoint of competition protection. Therefore, considered in this article are issues related to the competitiveness of enterprises and selected aspects of their concentrations. Analyzed are also the goals of competition law. The last part of the paper contains comments concerning the essence, objectives and effects of preventive concentration control.
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