Dr hab. Grzegorz Materna, prof. INP PAN The author is the Head of the Competition Law Department at the Institute of Law Studies of the Polish Academy of Sciences (INP PAN), an attorney at law at Hansberry-Tomkiel law firm.
Competition law has established a distinction between agreements restricting competition 'by object' and 'by effect'. This division has a significant practical importance as in case of anticompetitive conduct consistent with these classified as a restriction 'by object' the competition authority's obligations to support its findings with the necessary evidence are much lowered — the competition authority does not need to prove the effects of the practice. However, there is still no uniform answer to the question of whether the presumption of harmfulness of by-object restrictions can be rebutted due to the context of a specific case. Polish jurisprudence does not provide an unambiguous answer, drifting between a formal and a more economic approach. More explicit conclusions in favor of an economic approach can be drawn from EU law. The aim of the article is to present and compare models of antitrust assessment of restrictions "by object" developed in Polish and EU jurisprudence, and to propose, on this basis, a solution, that should be adopted in Polish jurisprudence. The author argues in favor of the antitrust authority examining the broader economic context also in case of conducts that fall into the categories usually assessed as restrictions "by object", provided that an appropriate evidence and arguments exist that may refute the presumption of restriction of competition.
Dr hab. Grzegorz Materna, prof. INP PAN
The author is the Head of the Competition Law Department at the Institute of Law Studies of the Polish Academy of Sciences (INP PAN), an attorney at law at Hansberry-Tomkiel law firm.