Negotiating and Conciliatory Application of Antitrust Law in Cases of Competition Restricting practices

Abstract

The traditional model of the disputed (confrontational) application of antimonopoly law in cases of competition-restricting practices currently coexists with the negotiation-conciliation (nonconfrontational) model. To be more precise, the antimonopoly authority can transform the first one into the latter.

Since competition protection authorities, both in Poland and the EU, have been granted a wide scope of freedom as to the choice of priorities and methods of applying protection instruments, it should be argued that the negotiation and conciliation model will become more and more important. The preferred, at the EU and national level, expansion of the number of detected violations, quick
termination of proceedings, and the achievement of the main goal of ceasing violations and removing their effects, encourage antitrust authorities to resort to public-private dialogue, which is an element of cooperation via a body-entrepreneur. All this is done to restore competitive imbalances and ensure consumer welfare.

Within the Polish legal order, in the field of competition-restricting practices (anti-competitive agreements and abuse of a dominant position), the negotiating model for the application of antitrust law includes binding decisions, the procedure of voluntary submission to punishment and, which is disputed, the leniency procedure. In addition, the so-called „soft speeches” of the President of UOKiK to entrepreneurs have gained significance in recent years.

A quantitative analysis of the jurisprudence of the Polish antitrust authority, with the necessary references to the practice of the EC, will allow for the verification of the thesis and to indicate the „costs and benefits” of the negotiated and conciliatory application of the antitrust law in cases of competition restricting practices with possible suggestions for the future.