Effectiveness of Judicial Review in the Polish Competition Law System and the Place for Judicial Deference

Yearbook of Antitrust and Regulatory Studies, Vol. 2016, 9(14)

28 Pages Posted: 12 Jan 2017  

Maciej Bernatt

University of Warsaw, Centre for Antitrust and Regulatory Studies

Date Written: December 10, 2016

Abstract

The article discusses the effectiveness and the intensity of judicial review in the Polish competition law system. First, it studies whether the judicial review offered by the 1st instance Court of Competition and Consumer Protection in Warsaw (SOKiK) is effective in practice. Next, the article analyzes whether Polish courts tend to defer to the findings of the Polish competition authority, UOKiK. Judgments of the Supreme Court concerning relevant market definition serve as case studies. Finally, the article discusses whether proceedings before the Polish competition authority ensure sufficient due process guarantees, the impartiality of decisionmakers, and the overall expert character of UOKiK’s decision-making process. On this basis the article examines whether there are grounds for the reviewing courts to defer to UOKiK’s findings. The article concludes that currently the review undertaken by SOKiK happens to be superficial and thus ineffective. At the same time, the Supreme Court’s review of the determination of the relevant market is not deferential towards UOKiK’s findings. The Supreme Court substitutes its own definition of the relevant market for that of UOKiK and that of the lower courts. However, the article shows that there are no grounds at the moment for arguing for greater judicial deference. Proceedings held before UOKiK, despite recently introduced improvements, still do not offer sufficient due process guarantees or a division between investigatory and decision-making functions. In addition, UOKiK’s expertise is not sufficient for both institutional and practical reasons.

Keywords: competition law, antitrust, judicial review, judicial deference, due process, procedure, courts, administration, EU, Central and Eastern Europe, Poland

JEL Classification: K21, K23, K49, L41, L42

Suggested Citation

Bernatt, Maciej, Effectiveness of Judicial Review in the Polish Competition Law System and the Place for Judicial Deference (December 10, 2016). Yearbook of Antitrust and Regulatory Studies, Vol. 2016, 9(14). Available at SSRN: https://ssrn.com/abstract=2896823

Maciej Bernatt (Contact Author)

University of Warsaw, Centre for Antitrust and Regulatory Studies ( email )

Warsaw
Poland

HOME PAGE: http://www.cars.wz.uw.edu.pl/news_gb.html

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