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IT providers beware! A new antitrust enforcement trend is looming!

The Polish Competition Authority (UOKiK) has announced the launch of exceptional antimonopoly proceedings against cartel facilitators. The authority claims to have gathered evidence that the undertakings, which are IT providers, facilitated an anticompetitive agreement between pharmaceutical wholesalers by providing them with IT tools. Allegedly, these tools enabled the wholesalers to exchange sensitive business information, for example on prices and rebates, to the detriment of fair competition.

Interestingly enough, the Polish Competition Act does not provide for an explicit legal basis for attribution of liability to cartel facilitators. Rumour has it that the authority plans to cite ECJ jurisprudence in the AC-Treuhand[1] case as a means to underpin the decision. In that case, the Court of Justice gave the green light to the Commission to fine a cartel facilitator where it is established that it “intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk”. By invoking this line of argument, the UOKiK would choose effectiveness of competition law enforcement over legal certainty. This is certainly not a development to be desired.

What does this mean for IT providers doing business in Poland?

Firstly, undertakings should be aware of the fact that antitrust risk needs to be seriously taken into account. As potential fines may reach up to 10% of the entity’s turnover, spending a fraction of this sum on legal advice seems a fairly reasonable step.

Secondly, IT providers should pay special attention to the purpose for which the tools they are to provide under an agreement will be used. Even where an illicit purpose is not described explicitly in the contract, an undertaking may run the risk of antitrust liability and fines. As a matter of fact, anticompetitive initiatives are more often than not expressed rather vaguely.  

Finally, when negotiating a contract, IT providers should envisage safeguards for instances where their business partners, contrary to prior warranties and representations, try to make illicit use of IT tools supplied to them.


[1] Judgment of the Court of 22 October 2015 AC-Treuhand AG, C-194/14 P.