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This article critically analyses the introduction and development of a system of competition law in Poland prior to 2016, a period when the country underwent two fundamental transitions: from a centrally planned economy to free markets and from communism to democracy. In particular, the study focuses on the competition agency’s setup, advocacy and enforcement efforts. It also examines the position and input of the judiciary, practitioners and the broader epistemic community. The study uniquely benefits from in-depth interviews with individuals who shaped the Polish system over nearly 30 years of its existence (inclusive of all former heads of the agency, judges, leading practitioners, and agency advisors) and from analysis of newly gathered data and statistics. It also draws on broader scholarship on new competition regimes. The findings are aimed to inform refinements in Poland and other countries establishing or developing competition law systems. This study will be particularly salient in countries that are undergoing or have undergone similar economic and/or political transitions.

The aim of this working paper is to preliminary identify those processes triggered by the rise of illiberal populism which have a potential to adversely affect the competition law system. It is hypothesized that these processes may be of a three-fold nature: 1) they may involve limitations on the independence and expertise of the institutions responsible for the application of competition law (competition authorities and courts); 2) they may translate into a protectionist use of competition law; and 3) they may affect regional competition law systems. To illustrate whether illiberal populism is capable of affecting the competition law system, the paper analyzes the situations in Poland and Hungary. The analyses cover some aspects of the functioning of competition agencies and the judiciary in these countries, as well as changes introduced to both existing laws and the practice of their enforcement. The paper speaks to the broader literature concerning the relationship between democracy and competition law systems. The paper presents the preliminary findings. For final findings please refer to the forthcoming monograph: Maciej Bernatt, Populism and Antitrust. The Illiberal Influence of Populist Government on the Competition Law System (Cambridge University Press 2022), https://www.cambridge.org/core/books/populism-and-antitrust/3619BEAF21AE0EA9A6F7AFA015670C3C

This article discusses the implications of the rule of law crisis on a core area ofEUlaw: competition law. It analyses the reforms of the judiciary in selected EU Member States and the reaction of EU institutions. The article shows that the reforms of the judiciary give rise to doubts regarding the independence and expertise of courts which are responsible for reviewing the decisions of national competition authorities adopted under Articles 101–102 Treaty on the Functioning of the European Union (TFEU) and national competition laws. As a result, the effective judicial protection required by EU primary law is undermined. In addition, mutual trust, upon which the decentralized enforcement of EU competition law is based, is put into question. The article calls upon EU institutions, and in particular the European Commission, to monitor closely the developments in Member States which may affect the enforcement of EU (and national) competition rules.

The article compares the application of the right of defense in competition law proceedings by seven National Competition Authorities (NCAs) of Central and Eastern Europe (CEE). In particular, the article focuses on four sub-rights that are part of the right of defense: right to be informed; right to access the file; privilege against self-incrimination (PASI) and legal professional privilege (LPP). The article shows that the NCAs selected as case studies generally provide lower procedural guarantees in comparison to DG Competition of the European Commission. The findings of the article are relevant in view of the Directive aiming at harmonizing the powers of NCAs (“ECN Directive”). The legislation aims at strengthening the investigatory tools of NCAs, while it pays limited attention to the procedural guarantees followed by NCAs. In view of the diverging application of the right of defense by the NCAs selected as case studies, the article challenges such policy choice, claiming that stronger investigative powers should be counterbalanced by a more homogenous application of the right of defense by NCAs of the EU Member States.

The United States (US) concept of judicial deference in administrative law limits the scope of judicial review of administrative agencies’ actions in light of agencies’ superior expertise and separation of powers arguments. It may serve as an interesting point of reference for the European discussion about adequate institutional balance between administration and courts.The Article analyses whether there are grounds for the validity of the concept of judicial deference in Continental Europe and in what areas (law, facts, or both). As a starting point, it remains generally accepted in Europe that it is the role of courts (and not administrative agencies) to interpret the law. Against this background, standards stemming from Article 6 of the European Convention on Human Rights (ECHR) are analyzed in order to determine whether a deferential standard of review is permissible under the ECHR principle of full judicial review. The analysis of the jurisprudence of the European Court of Human Rights (ECtHR) leads to the conclusion that there is space for US-like judicial deference under the European fundamental rights framework when it comes to questions of fact. On the other hand, the ECtHR’s jurisprudence does not offer much guidance as to whether any deference can be accorded to administrative statutory interpretation. Further study of the review by European Union (EU) courts of the European Commission’s decisions in the sphere of competition law shows that judicial deference is accorded in Europe in practice. Importantly, EU Courts declare deference to the Commission’s complex economic assessment and defer to the Commission’s interpretation of its own soft law. When it comes to facts, the standard of review seems to correspond with the US courts’ substantial evidence test. On the other hand, legal questions concerning the Commission’s own soft law are reviewed in a way similar to the Skidmore standard. Further similarities between Europe and the US are observed in the US Courts of Appeals’ practice of reviewing the Federal Trade Commission’s decisions in the field of antitrust. The actual intensity of review exercised by US courts remains close to the EU Courts’ review of the European Commission’s decisions.This Article shows that differences between the US and Europe — especially if one takes into account US courts’ often non-application of Chevron — are not so significant as one would intuitively think. In conclusion, this Article proposes three variables that may be identified in both the US and European approaches to decide whether judicial deference to administrative agency decisions should be accorded or not.

The paper analyzes the Polish legal system under which administrative sanctions are imposed. It is claimed that the efficiency of the functioning of this system should be balanced with the appropriate level of observance of procedural fairness as well as with appropriate rules governing the imputation of administrative liability. The paper analyzes three areas where a balanced approach is needed. The first concerns the premises of administrative liability, the second the scope of procedural rights, and the third the institutional arrangement of the system. The paper names wo factors that should be taken into consideration by the Polish legislator and the Polish Constitutional Court when deciding how to reconcile efficiency with procedural fairness and with an adequate construction of the premises of administrative liability. Taken into account should be, first, the complexity of the given area of administrative law and, second, the severity of the sanctions.

The EU courts have been criticized by competition law scholars for exercising insufficient review when it comes to the EU Commission’s determinations in factual and economic matters. It has also been claimed that the General Court gives the Commission too broad deference when it comes to the assessment of fine for violation of Article 101-102 of the TFEU. Against this background the EU courts judicial review is analyzed from the perspective of Article 6 of the European Convention on Human Rights (ECHR) in order to answer the question whether deferential standard of review is permissible under the full jurisdiction principle prescribed in Article 6(1) of the ECHR. The analysis of the European Court of Human Rights jurisprudence leads to the conclusion that the way in which the EU Courts currently review the EU Commission’s decisions is not very likely to be found in violation of Article 6 of the ECHR after the EU accesses to the ECHR. However, further improvements of fairness of the administrative process before the Commission should be considered.

Procedural fairness can be considered one of the basic principles of contemporary democratic states. Its sources can be identified in the international law and constitutional laws as well as in the opinions of legal theoreticians. The procedural fairness shall be understood as the group of values that shall be protected by the legal guarantees provided in different procedures, including administrative ones. For the European “new democracies” a major a role in establishing high standards in this respect is played by the system of the European Convention on Human Rights (ECHR). Especially there we find clear grounds for referring standards established by the Article 6 of the ECHR (right to a fair trial) and procedural guarantees of other rights and freedoms (such as protection of property) also to proceedings before administrative bodies.The article is concentrated on the question if procedural fairness is respected to a satisfactory degree in case of proceedings before the regulatory administrative bodies such as competition authorities. At the beginning, the description of the procedural fairness as both theoretical concept and constitutional principle is given. Further, when looking for the values of procedural fairness and the scope of its application, the standards under Article 6 of the European Convention on Human Rights are analysed. Afterwards, from the perspective of Poland, problems concerning the degree to which the procedural fairness is respected during the proceedings before the regulatory administrative bodies are described. The proceedings before the Polish competition authority is chosen as a case in point. In conclusion, the article underlines the importance of procedural fairness as the constitutional principle applicable in the proceedings before central administrative bodies that are entitled to interfere with the rights and freedoms of private entities.