Resale Price Maintenance (RPM) in Poland
RPM is explicitly prohibited under Polish Competition Act, which in section 6(1)(1) states that:
Any agreements which have as an object or effect the prevention, restriction, or other distortion of competition within the relevant market is prohibited, in particular, those which:
1) directly or indirectly fix purchase or selling prices or any other conditionn of sale […].
The above provision means that fixed resale prices and minimum resale prices are considered to be illegal. They are considered illegal also if a distributor accepts suppliers pressure to not to sell below its purchase price.
The Polish Competition Authority (“PCA”) deems RPM to be an agreement the object of which is to restrict competition. It also belongs to hard core restrictions excluded from the Polish Vertical Block Exemption Regulation. Any possible pro-competitive effect of conduct can be reviewed under an individual exemption rule.
We are not aware, however, of any court’s or PCA’s decisions in which RPM would be accepted as a pro-competitive conduct covered by individual exemption.
The legality of vertical maximum-price agreements depends largely on the size of a supplier’s and buyer’s share of a relevant market. If the shares (both of supplier and buyer) do not exceed 30%, the agreement is permitted (however, if the share is above 30%, it does not automatically mean that the practice is unlawful. It still can benefit from an individual exemption).
There is no case-law in which maximum prices would be found anticompetitive only due to high market shares.
Suggested resale prices
Suggested resale prices are permitted under Polish competition law unless they directly or indirectly lead to a fixed price. The nature of prices is, however, determined by the actual operation of them and not by formal names. If the freedom of retailers to set prices is constrained by pressure exerted by a supplier to comply with the prices referred to as recommended prices, such prices will in fact be fixed prices.
If supplier’s market share exceeds 30%, the risk that suggesting resale prices is anticompetitive raises, although there is no case-law in which (pure) suggesting of resale prices would be found anticompetitive only due to high market shares.
Polish case law on RPM
During the past decade, RPM has been the competition-restricting conduct that has been most frequently investigated and penalized by the PCA. In fact, the PCA has investigated more frequently this type of vertical agreement than all other types of agreements or concerted practices which include horizontal agreements.
The PCA reported cases on RPM include decisions in cases:
- Diet supplements (2021): EUR 260,000
- Office equipment (2021): EUR 89,610; leniency involved
- Scooters (2021): EUR 117,290; leniency involved
- Printers (2019): EUR 290,581; leniency involved
- Cleaning materials (2016): EUR 788,337
- Ski equipment (2016): EUR 17,345; leniency involved
- Boilers (2016): EUR 51,049
- Ski equipment (2013): EUR 29,408; leniency involved
- Watches (2013): EUR 196,479
- Casual dining (2013): EUR 111,302
- Particleboard / Fibreboard (2012): EUR 3,293,819
- Furniture (2012): EUR 79,072
- Boat transport / Rafting (2011): No fine was imposed
- Paints / lacquers (2010): EUR 25,877,755; leniency involved
- Smoke detectors (2010): EUR 17,806
- Petrol stations (2010): EUR 12,650,589
- Paints / lacquers (2010): EUR 11,585,878, leniency involved
- Paints / lacquers (2008): EUR 232,468
- Construction chemicals (2008): EUR 76,440
- Paints / lacquers (2008): EUR 10,970,872
- Clay roof tile (2007): EUR 149168
- Paints / lacquers (2006): EUR 26,249,925, leniency involved
(The amount of fines is approximate; note that in some fines were subsequently reduced by courts).