Sankcje w ustawie o przeciwdziałaniu praktykom monopolistycznym w gospodarce narodowej
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Date
1987
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Wydział Prawa i Administracji UAM
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Sanctions in the act on counterating monopolistic practices in the national economy
Abstract
The article is concerned with the evaluation of civil, administrative and penal
law sanctions contained in the Act on Counteracting Monopolistic Practices in the
National Economy.
Analysing the invalidity sanction applicable in cases of monopolistic practices
and agreements the author points out to the inconsistencies in the Act's provisions,
some of which suggest that the legislator provided for absolute invalidity while
others indicate suspended invalidity. The only conclusion one may draw with
certainty is that invalidating monopolistic agreements mentioned in Art. 11 requires
a decision by an antimonopoly organ. Equally clear is Art. 12 granting the said
organ the competence to invalidate pricing agreements. However, while Art. 12
seems to impose on the antimonopoly organ a duty to declare invalidity of monopoly
agreements, Art. 13 grants competence combined with discretionary powers of
an administrative organ. The above solution is defective since monopolistic agreements
with respect to prices are the most dangerous form of restricting competition.
(Discussing the most severe administrative sanctions, i.e. the division of an economic
unit or its liquidation, the author holds the view that decisions in the above
matters are conditioned upon formalized and unimportant premisses from the point
of view of purposes of the Act, such as three former infringements of the Act
within the past three years. On the other hand, the said sanctions should be applied
towards enterprises occuping a dominant position on the market and only when
other legal means do not give desirable effect. Paradoxically, the antimonopoly
organ may command the most severe sanctions against small economic units, such
as partnerships, cooperatives or individuals running their own enterprises.
The author approves of the solution concerning the control of integration processes
(mergers) which provides for the necessity of obtaining a prior consent of
an antimonopoly organ.
In his concluding remarks the author sets forth the postulate to initiate the
studies on the ways of antimonopoly policy. To do this, it is necessary for lawyers
and economists to reach an agreement as to the interpretation of highly complex
provisions of the Act. The author suggests to use the period of „vacatio legis" for
initiating the works in the above field in the Council for Counteracting Monopolistic
Practices.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 49, 1987, z. 4, s. 21-37