As announced, this Tuesday morning we would like to present to you the issues related to the burden of proof in proceedings pending before the President of the Office of Competition and Consumer Protection.
At the outset, it is worth mentioning that in proceedings before the President of the Office of Competition and Consumer Protection, the provisions of the Code of Administrative Procedure apply to matters not regulated by the Act of 16 February 2007 on Competition and Consumer Protection. However, in matters concerning evidence, the provisions of the Code of Civil Procedure, regulated in Articles 227-315 of the Code of Civil Procedure, apply accordingly. This is of significant importance for these proceedings, because, pursuant to Article 232 of the Code of Civil Procedure, the parties are obligated to present evidence to establish the facts from which they derive legal consequences. In other words, the entrepreneur bears the burden of demonstrating circumstances favorable to them.
The above evidentiary rule is supplemented by the provisions of the Act on Competition and Consumer Protection, which, for example, in Articles 10 and 27 provide that the burden of proof of cessation of prohibited practices rests with the entrepreneur .
The cited provisions significantly modify the general principle in cases pending before administrative bodies, where, in accordance with Articles 7 and 77 of the Code of Administrative Procedure, the public administration body is obliged ex officio to take all necessary steps to thoroughly clarify the factual circumstances of the case and to exhaustively collect and consider all evidence.
Given the above, in proceedings before the President of the Office of Competition and Consumer Protection, businesses should take a proactive stance, presenting evidence to support their claims . This means submitting specific documents or other evidence, not statements by the business, which are considered merely statements of position on the matter.
This is all the more important given the most common course of proceedings before the President of the Office of Competition and Consumer Protection (UOKiK), who, on his own initiative, gathers evidence leading to the issuance of a decision imposing a fine on a business (regarding proceedings regarding the recognition of provisions in standard contracts as unlawful and proceedings concerning practices infringing collective consumer interests). He has all the authority to do so, as Article 50 of the Act on Competition and Consumer Protection requires businesses to provide all necessary information and documents upon request of the President of the UOKiK. We note here that the President of the UOKiK may impose a fine on a business if, even unintentionally, they fail to provide the requested information.
The above considerations may seem theoretical, but they are applied in practice. In August 2021, the President of the Office of Competition and Consumer Protection issued a decision imposing a fine of PLN 50,000 on the developer because it failed to respond to a request for clarification during the explanatory proceedings. Consequently, it failed to provide explanations, and the authority was unable to determine whether it was justified to initiate proceedings to recognize the provisions of the standard contract as unlawful and to investigate practices infringing collective consumer interests.
Finally, we emphasize that the list of evidence that may be subject to review by the President of the Office of Competition and Consumer Protection (UOKiK) is not exhaustive. The most important evidence the authority typically expects is documentary evidence – e.g., a sample or anonymized copy of a document, minutes, letters, or meeting notes. Evidence may also include: witness testimony, expert opinion, scientific opinion, or party testimony – however, in practice, these are generally not used during proceedings before the President of the UOKiK, and are more often used at the court stage.
In summary, developers should actively participate in proceedings before the President of the Office of Competition and Consumer Protection (UOKiK). It is in their best interest to gather evidence that may be useful in the case and submit it to the President of the UOKiK. Failure to provide the required evidence or submit the required evidence may result in severe penalties imposed by this body.
Next week, we will prepare a summary of the issues we discussed in our "Tuesday Mornings for Construction", also pointing out significant changes in the law in 2021.
This article is for informational purposes only and does not constitute legal advice.
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