Today, we continue our analysis of issues related to the Office of Competition and Consumer Protection ("UOKiK") in the context of residential development investments. In this article, we will examine the proceedings conducted by the President of the UOKiK.
At the outset, we would like to point out that in the scope discussed, the President may conduct three types of proceedings:
i. explanatory ,
ii. proceedings to recognise the provisions of a standard contract as unlawful (" proceedings concerning unlawful clauses "),
iii. proceedings concerning practices infringing collective consumer interests (" proceedings concerning practices infringing collective consumer interests ").
Typically, explanatory proceedings precede the initiation of proceedings concerning prohibited clauses or practices infringing collective consumer interests. The latter two proceedings may also be the subject of a single proceeding. It should also be noted that the Office of Competition and Consumer Protection (UOKiK) may request clarification and a position from the developer, to which the entrepreneur should be given at least 14 days to respond. Such a request does not yet constitute the initiation of proceedings, although it often precedes them.
Proceedings are initiated ex officio by means of a resolution. However, this does not exclude the possibility that various complaints, motions, notifications, and reports may be submitted to the President of the Office, and the Office of Competition and Consumer Protection (UOKiK) may initiate further formal steps based on the information obtained in this manner.
As the name suggests, the explanatory proceedings aim to clarify and initially determine whether there are circumstances justifying a possible violation of the regulations. Such proceedings should last no longer than four months (five months in particularly complex cases) and should conclude with a decision.
Proceedings concerning prohibited clauses and practices infringing collective consumer interests are initiated by means of a resolution, and the Office of Competition and Consumer Protection is obligated to notify the developer, who then becomes a party to the proceedings. It's worth emphasizing that neither of these proceedings can be initiated if three years have passed since the end of the year in which the prohibited clauses or practices infringing collective consumer interests ceased . Therefore, it's always worth thoroughly verifying the scope of the initiated proceedings and, if three years have passed, raising such an objection.
In proceedings concerning unfair terms, the President of the Office of Competition and Consumer Protection (UOKiK) may allow participate in the proceedings as an interested party if he or she determines that such participation may contribute to the clarification of the matter. The interested party has the right to submit documents and explanations, as well as access to the case file. However, they do not have the right to appeal the decision.
Additionally, during proceedings concerning practices infringing collective consumer interests, the President of the Office of Competition and Consumer Protection (UOKiK) may also issue an interim decision. This obliges the developer subject to the proceedings to refrain from certain activities if it is reasonably certain that they may pose a serious and difficult-to-remove threat to consumers. An interim decision is valid for the period specified therein, but no longer than until the issuance of a final decision. No penalties are imposed in such a decision.
When conducting evidentiary proceedings , the President of the Office primarily obtains information, explanations, and documents from the parties to the proceedings – in this case, developers. The Office also has the right to conduct an inspection at the developer's premises within the scope of the proceedings, which in practice may mean, for example, the right to inspect all concluded development agreements for a given investment. During the proceedings, witnesses or an expert may also be heard.
To obtain information that may constitute evidence in a case, the Office of Competition and Consumer Protection may also use the mystery shopper . With the approval of the Competition and Consumer Protection Court, which must be granted within 48 hours, UOKiK employees may take steps to purchase an apartment and thus obtain direct evidence of the developer's practices.
Both types of proceedings – those concerning prohibited clauses and those concerning practices infringing collective consumer interests – should be concluded with a decision within four months (five months in particularly complex cases). The President of the Office of Competition and Consumer Protection (UOKiK) may make the decision immediately enforceable in whole or in part. In practice, these proceedings against developers can take longer, and the President of the UOKiK should notify the parties of any extensions pursuant to the general provisions of the Code of Administrative Procedure, providing the reasons for the delay and specifying a new deadline for resolving the matter.
As a result of the administrative proceedings, the President of the Office issues a decision in which: (i) he or she deems a provision of a standard contract unlawful ; (ii) he or she finds a practice to violate collective consumer interests and orders its discontinuation or declares ; or (iii) he or she discontinues the proceedings due to its illegitimacy . Additionally, the decision specifies sanctions for potential violations, and a separate decision addresses the costs of the proceedings.
Please note that the decisions of the President of the Office of Competition and Consumer Protection (UOKiK) are published on the office's website. The decisions of the President of the UOKiK are published with the name and registered office of the developer (the addressee of the decision), but without disclosing any business secrets.
Finally, it is important to remember that although proceedings before the President of the Office of Competition and Consumer Protection (UOKiK) are administrative in nature, an appeal may be filed with the District Court in Warsaw – the Court of Competition and Consumer Protection . An appeal must be filed through the court within one month of its delivery to the developer. The appeal must meet the requirements of a procedural document and must include a reference to the contested decision, a statement of the objections, a concise justification, and evidence. It must also include a request to quash or amend the decision in whole or in part. A motion to stay the decision's execution until the court resolves the matter may also be filed.
In summary, the President of the Office of Competition and Consumer Protection (UOKiK) has broad powers to clarify all the circumstances of a case. These proceedings conclude with the issuance of an administrative decision, but an appeal may be lodged with the Court of Competition and Consumer Protection.
In turn, we will describe the penalties and sanctions that the President of the Office of Competition and Consumer Protection may impose on entrepreneurs, including developers, in his decisions next week.
Legal status as of November 29, 2021
This article is for informational purposes only and does not constitute legal advice.
author/editor of the series:
