The legal status of foreign undertakings – could undertakings with a registered seat abroad be regarded as undertakings entitled to file a request for the institution of antimonopoly proceedings under Polish antitrust law? Case comments to the judgment of the Supreme Court of 10 May 2007 – Netherlands Antilles (Ref. No. III SK 24/06)

Abstract

By the judgment of 10 May 2007 (III SK 24/06), the Polish Supreme Court ended an over decade-long debate concerning the anticompetitive practices of the Polish incumbent telecoms operator Telekomunikacja Polska S.A. on the national market for audio-text services. In this judgment, the Supreme Court interpreted the provisions of the Act of 24 February 1990 on Counteracting Monopolistic Practices. However, in its assessment of the general principles of the case, the Court also made reference to the Act of 15 December 2000 on Competition and Consumer Protection (Competition Act 2000), which replaced the Antimonopoly Act. The Supreme Court ruled that a firm’s entry, or lack thereof, into the Register of Entrepreneurs of the National Court Register does not prejudice its status as “an undertaking” within the meaning of Article 4(1) of the Competition Act 2000 – decisive in this context was said to be the conduct of an economic activity, rather than the fact of registration. Both the principle and the line of reasoning contained in the judgment remain valid, partly at least, under the current Act of 16 February 2007 on Competition and Consumer Protection (Competition Act 2007).

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