On Friday 28 January 2022, before the Court of Appeal in Warsaw, our client - Minova Ekochem S.A. - successfully concluded an over 9-year-long court battle against the decision of the President of the Office of Competition and Consumer Protection (OCCP) alleging, among other things, existence of an illicit anti-competitive agreement consisting of (i) price fixing, (ii) market sharing and (iii) bid rigging on the mining chemicals market.
In the decision alleging the existence of the cartel, the President of the OCCP imposed a financial penalty of several million dollars. The Baker McKenzie competition law team in Poland led by Marcin Trepka and composed of Elżbieta Buczkowska, Martyna Wurm and Łucja Olszewska succeeded in proving to the court, among other things, that: the witness statements on which the President of OCCP based its decisions were not credible, the economic analysis used by the Office was flawed, the relevant market was determined incorrectly, not all parties were included in the antitrust investigation, the financial penalty was calculated and imposed unlawfully, and, most importantly, that the evidence gathered in the case was not sufficient to establish the existence of an agreement in the case in question, and in addition the antitrust statute of limitations had run its course.
This is a precedent-setting case for several reasons - first and foremost, this is the first proceeding in which the President of OCCP used economic analysis as evidence of the existence of a cartel, and in which the OCCP held that in horizontal agreements (cartels) the Office should establish the full circle of participants to the alleged agreement. Moreover, the Court of Appeal confirmed that the failures by the President of OCCP to determine the relevant market in the case cannot be remedied in court proceedings and must result in a revocation of the decision.