TRUCK DEALERS CARTELS IN POLAND – TWO DECISIONS ISSUED BY THE POLISH OFFICE FOR THE PROTECTION OF COMPETITION AND CONSUMERS
The President of the Polish Office for the Protection of Competition and Consumers issued two decisions concerning agreements limiting competition between truck dealers.
The two decisions issued relate to collusion by DAF car dealers. In the first case, the President of the Office for Competition and Consumer Protection (Polish: UOKiK) found that five companies: DBK of Olsztyn, ESA Trucks Polska of Komorniki (Wielkopolskie Voivodeship), TB Truck & Trailer Serwis of Wolica (Mazowieckie Voivodeship), Van Tilburg-Bastianen Groep of Breda, the Netherlands, and WTC of Długołęka (Dolnośląskie Voivodeship) had entered into an agreement restricting competition. Entrepreneurs have divided the market among themselves. Together they agreed that each would sell DAF trucks in a specific area and not compete for customers in other parts of Poland. They also exchanged pricing information. In the case of four companies (excluding ESA Trucks Poland), the arrangements also concerned the exchange of information on bids submitted in tenders.
HOW DID THE CARTEL WORK?
The agreement lasted at least 7 years – from February 2011 to March 2018. Initially, DBK and WTC together with ESA Trucks Poland divided the market for DAF trucks sales. In 2016, TB Truck & Trailer Service joined the agreement with the consent and knowledge of the Dutch company controlling it, Van Tilburg-Bastianen Groep.
Evidence collected during the proceedings, including e-mails, shows that the entrepreneurs acted with full knowledge and unambiguous intention not to compete with each other. For example, if a potential buyer from an area assigned to DBK wanted to buy a truck from ESA, they were discouraged from doing so. He was presented with an additional inflated price in the ESA so that he would take advantage of the vendor’s offer from his region. Cartel participants constantly monitored each other’s behavior and contacted each other when it was suspected that one of them was violating the arrangements.
FINANCIAL PENALTIES FOR COMPANIES
The President of the Office for Competition and Consumer Protection imposed penalties on entrepreneurs in the total amount of over PLN 118 million. Individual entities received the following sanctions:
DBK – 45,289,797.52 PLN;
WTC – 24,310,342.89 PLN;
ESA Trucks Polska – 40,498,200.00 PLN;
TB Truck & Trailer Serwis – 5,946,417.83 PLN;
Van Tilburg-Bastianen Groep – 2,077,404.20 PLN.
The fines imposed on TB Truck & Trailer Service and Van Tilburg-Bastianen Groep were reduced. Businesses have taken advantage of the leniency program. They admitted to the prohibited arrangements, fully cooperated with the President of the Office in the course of the proceedings, and handed over important evidence in the case, including arrangements as to actions taken inside TB Truck & Trailer Serwis and between its managers. Therefore, the sanctions against them were reduced by 50 percent. It is worth pointing out that entrepreneurs could not obtain full exemption from the penalty, because at the time of filing a leniency application, the President of the Office already had sufficient evidence to initiate antitrust proceedings. In addition, both companies exercised their option to voluntarily surrender their fines, which reduced the penalties by an additional 10 percent.
PENALTIES FOR MANAGERS
The investigation also revealed that management took an active role in the agreement by, among other things, disciplining their salespeople to stick to the arrangement, even under threat of being fired or having their pay taken away. Therefore, the President of the Polish Office for the Protection of Competition and Consumers imposed sanctions on eight managers in the total amount of nearly PLN 1.7 million. Executives at TB Truck & Trailer Serwis and Van Tilburg-Bastianen Groep were included in the former’s leniency application and their fines were reduced by 50 percent. In addition, a TB Truck & Trailer Service representative voluntarily surrendered the penalty and received another reduction – by 10 percent.
The second decision issued also relates to the unauthorized arrangements of DAF truck dealers. In this case, three companies are involved: Wanicki Company from Mogilany, DBK from Olsztyn and WTC from Długołęka.
– The investigation proved that the entrepreneurs divided the market among themselves. They jointly agreed that each of them would participate in public tenders only in a certain territory and would not submit bids in the area assigned to another entrepreneur.
The total penalties imposed on the participants in the conspiracy amounted to over PLN 2.65 million.
CONSEQUENCES OF UNFAIR COMPETITION
Using two truck dealer decisions as examples, one can see how harmful market-sharing agreements are. As a result of the actions of dishonest traders, potential customers lose the opportunity to buy products of a given brand from selected sellers or receive offers with higher prices. The consequence of unfair competition was worse conditions for purchase of DAF trucks, which was felt by transport companies in Poland using these vehicles in their fleets. The issued decisions will make it easier for the victims of these practices to pursue compensation claims in court.
Decisions rendered are not final and may be appealed in court.
CLAIMS
The Private Enforcement Damages Claims Act came into force in 2017 in Poland. On its basis, anyone who has suffered damages in connection with restrictive practices may claim compensation in court. This can be done, for example, by a contractor of a business that has violated competition law.
The President of the Polish Office of Competition and Consumer Protection has prepared and published a study “Pursuing claims for damages due to infringement of competition law”, in which the Polish authority outlines the regulations concerning these issues.
