Settlement on appeal to the Court of Competition and Consumer Protection, as a new legal instrument from January 1, 2020.
What to do when the entrepreneur has received an unfavorable decision of the President of the Office of Competition and Consumer Protection, with which he does not agree? Is it possible to appeal against it or is it possible to somehow suspend its execution? Can mediation be undertaken with a party to the proceedings? We present the settlement on the appeal to the Court of Competition and Consumer Protection as a new legal instrument.
Proceedings before the President of the Office of Competition and Consumer Protection are conducted as explanatory proceedings, antimonopoly proceedings, proceedings for recognizing provisions of a standard agreement as illegal or proceedings concerning practices infringing collective consumer interests. If the procedure ends with the issuance of a decision of the President of the Office of Competition and Consumer Protection, it may be appealed against to the District Court in Warsaw - the Court of Competition and Consumer Protection, within one month from the date of its delivery.
Formal requirements for appeal
An entrepreneur should know that an appeal against the decision of the President of the Office of Competition and Consumer Protection is filed through him to the above-mentioned Court of Competition and Consumer Protection. According to the regulations, such an appeal should meet the formal requirements, i.e. it should contain all the elements necessary for the pleading and contain the indication of the contested decision, quotation of charges, their substantive justification, and indication of evidence. The appeal should also include the party's request, whether it is to set aside or to change the decision in whole or in part.
Validation of the decision
The decision becomes enforceable only after it becomes final, i.e. after the expiry of the time limit for lodging an appeal, and in the event of an appeal against the decision - after the appeal is legally dismissed. Moreover, the entrepreneur may appeal against the decision, while the President of the Office of Competition and Consumer Protection may make the decision immediately enforceable in whole or in part, if it is required by competition protection or important consumer interests. In this way, the obligations imposed on the entrepreneur in the decision become immediately enforceable. For many entrepreneurs it may be a difficult situation due to economic and financial reasons or due to the company's image. In such circumstances, the entrepreneur may submit an application to the Court of Competition and Consumer Protection, together with the appeal, to suspend the execution of the decision until the case is resolved.
In practice, it is indicated that the President should impose the rigor of immediate enforceability in special circumstances, i.e. when failure to immediately implement a decision may cause irreversible or hardly reversible negative effects on competition or consumer interests.
Settlement on appeal to the Court of Competition and Consumer Protection - New regulations, new possibilities
An interesting solution is provided by the new regulations that are in force from January 1, 2020. Art. 47930a added by Art. 2 point 4 of the Act of July 31, 2019 (Journal of Laws 2019.1495) amending this Act as of January 1, 2020.
Pursuant to Art. 47930a. of the Code of Civil Procedure, in cases of appeals against the decisions of the President of the Office of Competition and Consumer Protection, the parties may conclude a settlement regarding the adoption of arrangements as to how to settle it, the so-called settlement on appeal to the court of competition and consumer protection.
The entrepreneur must know that the agreement on appeal is a special institution provided for by law, including the Code of Civil Procedure, because it is not related to a settlement in strictly civil matters and typical provisions on settlements and mediation will not apply to it.
It is assumed that the settlement is to be a kind of possibility in relation to the judgment, a form of ending the case, which, as a result of the entrepreneur's appeal, would go to court. As it should be noted, the parties have a wider catalog of possible decisions than those before the court itself. By way of example, it should be mentioned here, for example, the possibility for the complainant to withdraw his appeal.
The initiation of negotiations between the parties to the litigation and the willingness to take the impulse to reach a settlement out of court is voluntary. It should be borne in mind that the subject of a settlement must always be only such a settlement that is consistent with the law.
The agreement on the appeal to the court of competition and consumer protection should contain:
- time and place of its preparation;
- name and surname (name) or designation of the parties, as well as their addresses;
- arrangements made by the parties as to the manner of settling the matter;
- signatures of the parties.
Pursuant to the added provision, the Court of Competition and Consumer Protection obligatorily suspends the proceedings, at the joint request of the parties intending to conclude a settlement regarding the appeal to the Court of Competition and Consumer Protection, for a period of up to three months. If the parties fail to reach an agreement within this period, the suspension period may be extended at the joint request of the parties (or for other important reasons). The condition is that the circumstances raised by the parties when extending this period must aim to prove that everything is to be conducive to settling the case by way of an agreement on an appeal to the Court of Competition and Consumer Protection.
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In the event of an ineffective expiry of the deadline for reaching a settlement, the Court of Competition and Consumer Protection should adopt a decision to initiate proceedings ex officio. Before the set date, the court has the option to issue such a decision, but only in two cases, i.e. when the party itself wants to request the court to resume the proceedings and in a situation where the parties sign a settlement.
The signed settlement requires court approval. On the basis of the approved settlement on appeal to the court of competition and consumer protection, the President of the Office shall revoke or amend the challenged decision, or perform or take another action, depending on the circumstances of the case, within the scope of his jurisdiction and competence.
The court may not approve a settlement in a situation where it is contrary to the law or the principles of social coexistence or aims to circumvent the law, as well as when it is incomprehensible or contains contradictions. Ultimately, the conclusion of the settlement and its approval by the court causes the Court of Competition and Consumer Protection to discontinue the proceedings in the scope covered by the settlement. Such a decision has an effect on the costs of the proceedings, as the costs of the proceedings in which the settlement on the appeal to the competition and consumer protection court are approved are canceled out of each other, unless the parties agree otherwise. The mutual elimination of costs means that the parties remain with the costs incurred in connection with their participation in the case.
art. 47930a of the Act of November 17, 1964, Code of Civil Procedure (Journal of Laws 2019.1460, i.e.);
Article 81 of the Act of February 16, 2007 on competition and consumer protection (Journal of Laws 2019.369, i.e.).