Ustawa antymonopolowa z 1987 roku. Próba oceny podstawowych rozwiązań
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Date
1987
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Wydział Prawa i Administracji UAM
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The antimonopoly act of 1987 (An attempt to evaluate basic solutions)
Abstract
The subject-matter of the article is an attempt to evaluate basic legal solutions
of the Act of January 28, 1987 on counteracting monopolistic practices (Dz. U. nr 3,
sec. 18). This act, unprecedented in the Polish legislation, is part of the economic
reform.
Polish economy is characterized by a high degree of concentration of production
and monopolization of the market. With the increase of legal and economic independence
of socialized enterprises more widespread became the tendency to
take advantage of priviledged market position and to apply different monopolistic
practices infringing the social interest and the interests of other producers and
consumers. Such negative phenomena are a serious threat for the present economic reform. Therefore they need to be neutralized by the state through its broad and
complex antimonopoly policy. One of the elements of that policy is the Act of
1987.
The Act does not fight monopolies understood as organizational structures.
The existence of monopolies is neither forbidden by law nor it is subject to legal
sanctions. The Act, however, fights the most deterimental external aspects of
monopolies, i.e. specific practices and monopolistic agreements. It is the basic
purpose of the Act. Another important aim of the Act is protecting competition.
The Act encompasses wide subjective and objective range. It is concerned
with virtually all economic activity conducted by all legal and natural persons
irrespective of the form of property, size or the degree of monopolizing the market
since in conditions of an unbalanced market any producer, big or small, may
behave or behaves like a true monopolist.
The author presents the catalogue of monopolistic practices and agreements
forbidden by the Act (Art. 8, 9, 11, 13, 14). He formulates several reservations
and doubts concerning the narrow range of forbidden practices and the liberal
attitude of the legislator towards the perpetrators of such practices. In particular,
he criticizes the solution according to which monopolistic practices and agreements
forbidden by the Act are not absolutely invalid (ex lege) but are subject to
invalidation by an antimonopoly organ.
In the final part of the article the author discusses the tasks and competences
of an antimonopoly organ with respect to counteracting monopolistic practices and
shaping the antimonopoly policy (Art. 4, 5). The author critically evaluates the
placement of an antimonopoly organ as an administrative organ in the structure of
State. In the author's opinion, vesting in the Minister of Finance additional
functions of an antimonopoly organ is not the best solution. Rather, a special
Antimonopoly Office subordinated directly to the Sejm or the Council of State
should have been created.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 49, 1987, z. 4, s. 1-20