Maciej Bernatt- Dr. habil.
- Professor (Associate) at University of Warsaw
Maciej Bernatt
- Dr. habil.
- Professor (Associate) at University of Warsaw
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64
Publications
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Introduction
Maciej Bernatt is a Professor of the University of Warsaw. He holds a Habilitation, PhD and MA titles in law and a second MA title in international relations. He is the director of the Centre for Antitrust and Regulatory Studies, Faculty of Management, University of Warsaw, Poland. He held visiting fellow appointments at the academic institutions in Australia, Germany, and the U.S. Maciej's interests lie at the intersection of competition law and constitutional law, administrative law and EU law
Current institution
Publications
Publications (64)
This article analyses competition legislation through the lenses of national constitutions, given that these constitutions establish the foundational structures of national legal systems to which competition laws inherently belong. Building on existing constitutional literature, it posits that competition laws should be construed in accordance with...
What is ‘media’ in a digitalized society where boundaries between news, commercial and social content are increasingly blurred? What do we really mean by ‘media pluralism’? These are all key questions liberal democracies in Europe and beyond need answers to, given both political challenges and the rise of market power and Big Tech companies whose a...
Against the backdrop of processes of democratic backsliding materializing in many countries in the world, the paper addresses the question about a pro-democratic role of competition law. Relying on the existing case-law, the paper distinguishes the substantive and the procedural dimensions of competition law-democracy link, and it explains that com...
In the last eight years Poland experienced an illiberal shift. Key elements of constitutional democracy were undermined. The story is well-known to public law scholars, particularly with respect to judicial reforms. However, off most people’s radar have been the changes which increased the role of state-controlled and state-owned firms (SOEs) in th...
Thirty years of modern competition law systems in Central and Eastern Europe (CEE) invite reflection on the lessons the region can offer to the world. This paper focuses on enforcing the prohibition of anticompetitive agreements, in particular on collusion involving trade associations. Taking the legacy of the socialist economy as a contextual fact...
The case-comment explains why the General Court's judgment in Sped-Pro of 9 February 2022 is a potential breakthrough for the protection of rule of law as an Article 2 TEU value in these areas of EU law where its application presupposes the existence of mutual trust. The case-comment argues that the judgment clarifies that Article 19 TEU requires a...
This article examines how illiberal changes, both in the political system and the economy, by populist governments in Hungary and Poland are increasing the risk of corruption and collusion in public procurement processes in those countries. It notes that these developments have significant consequences not only for Hungary and Poland, but also for...
This paper offers a reasoned and up-to-date reconstruction of the competition law enforcement system in the EU. It aims to explain what the architecture of competition law enforcement in the EU is, what the main achievements of the system are, as well as the challenges still threatening effectiveness of enforcement. The study covers three pillars o...
Thirty years of modern competition law systems in Central and Eastern Europe (CEE) invite reflection on the lessons the region can offer to the world. This paper focuses on enforcing the prohibition of anticompetitive agreements, in particular on collusion involving trade associations. Taking the legacy of the socialist economy as a contextual fact...
This paper offers a reasoned and up-to-date reconstruction of the competition law enforcement system in the EU. It aims to explain what the architecture of competition law enforcement in the EU is, what the main achievements of the system are, as well as the challenges still threatening effectiveness of enforcement. The study covers three pillars o...
By discussing the experiences of Hungary and Poland, this article aims to demonstrate that there are three layers of the rule of law which are relevant for EU competition law. The first one is external: it relates to the legal system of EU Member States of which competition law is a part. In national legal systems, rule of law safeguards need to be...
Competition law is designed to promote a consumer-friendly economy, but for the law to work in practice, competition agencies - and the courts who oversee them - must enforce it effectively and impartially. Today, however, the rule of populist governments is challenging the foundations of competition law in unprecedented ways. In this comprehensive...
In case C-562/19, Commission v. Poland, the Court of Justice confirmed its settled case law that the EU rules on State aid apply to tax measures which have not been harmonized under EU law. The Court also reaffirmed that tax measures must be reviewed
under Article 107(1) TFEU using the three-element selectivity test. The ruling, however, brought im...
Competition law is designed to promote a consumer-friendly economy, but for the law to work in practice, competition agencies - and the courts who oversee them - must enforce it effectively and impartially. Today, however, the rule of populist governments is challenging the foundations of competition law in unprecedented ways. In this comprehensive...
Chapter 1 introduces the reader to the book’s topic and the existing debates which the book addresses. It also frames the book’s scope and research questions and explains the methodology and the selection of specific countries. The meaning of the principal concepts is explained.
Chapter 6 discusses the functioning of a regional system of competition law during a time of populism. This chapter is focused on the EU competition law system. Four topics are addressed. The first is the EU legislative initiative, which is aimed to empower national competition authorities, i.e. the ECN+ Directive. It is argued that this directive...
Chapter 5 examines the practice of the application of competition law by competition agencies, and identifies the major characteristics of agencies’ practice in countries ruled by populists’ governments. In doing this it examines the manifestations of the influence of populists’ governments on the enforcement of competition law. The chapter examine...
Competition law is designed to promote a consumer-friendly economy, but for the law to work in practice, competition agencies - and the courts who oversee them - must enforce it effectively and impartially. Today, however, the rule of populist governments is challenging the foundations of competition law in unprecedented ways. In this comprehensive...
Competition law is designed to promote a consumer-friendly economy, but for the law to work in practice, competition agencies - and the courts who oversee them - must enforce it effectively and impartially. Today, however, the rule of populist governments is challenging the foundations of competition law in unprecedented ways. In this comprehensive...
Competition law is designed to promote a consumer-friendly economy, but for the law to work in practice, competition agencies - and the courts who oversee them - must enforce it effectively and impartially. Today, however, the rule of populist governments is challenging the foundations of competition law in unprecedented ways. In this comprehensive...
Chapter 2 discusses the notion of populism as approached in the political science, legal, and economic literature. It explains in detail how populism is understood in the book, what actions it is associated with, what its principal characteristics are, and what are the possible reasons behind the success of populist politicians. It analyzes the dif...
Competition law is designed to promote a consumer-friendly economy, but for the law to work in practice, competition agencies - and the courts who oversee them - must enforce it effectively and impartially. Today, however, the rule of populist governments is challenging the foundations of competition law in unprecedented ways. In this comprehensive...
Competition law is designed to promote a consumer-friendly economy, but for the law to work in practice, competition agencies - and the courts who oversee them - must enforce it effectively and impartially. Today, however, the rule of populist governments is challenging the foundations of competition law in unprecedented ways. In this comprehensive...
Chapter 3 builds on the findings of Chapter 2, i.e. that populists’ rule may work as a driver of illiberal change in democracy and the economy. It identifies two variables by means of which the scenarios concerning the impact populists’ government may have on competition law system can be determined. The first variable is related to the dismantling...
Chapter 4 is focused on the analysis of the influence populists’ rule has on two institutions: competition agencies and courts. It examines the competition agency’s independence, operating capabilities, mandate, and judicial review of the agency’s actions. In each of these areas the exact manifestations of the influence of populists’ governments on...
The volume offers ten contributions of renowned constitutional scholars and justices in Polish and German, who address fundamental questions of current German and Polish constitutional law. A focal point are constitutional basic values such as fundamental rights, democracy, and the rule of law. A common denominator of many contributions are the cur...
The volume offers ten contributions of renowned constitutional scholars and justices in Polish and German, who address fundamental questions of current German and Polish constitutional law. A focal point are constitutional basic values such as fundamental rights, democracy, and the rule of law. A common denominator of many contributions are the cur...
The paper discusses how the mandate of competition agencies is affected by actions taken by populist governments. Poland serves as a case study in this respect. Two principal problems are addressed. The first one is the prioritization of consumer enforcement over competition law enforcement by competition agencies. The second is the broadening of t...
The article aims at demonstrating that unconstitutional results, marking an illiberal transformation may be achieved by means of a series of statutory amendments outside the constitutional amendment procedure, when the guardian of the constitution is deactivated. In other words, the evasion of the constitution becomes a means of illiberal change of...
This article discusses the implications of the rule of law crisis on a core area ofEUlaw: competition law. It analyses the reforms of the judiciary in selected EU Member States and the reaction of EU institutions. The article shows that the reforms of the judiciary give rise to doubts regarding the independence and expertise of courts which are res...
This article critically analyses the introduction and development of a system of competition law in Poland prior to 2016, a period when the country underwent two fundamental transitions: from a centrally planned economy to free markets and from communism to democracy. In particular, the study focuses on the competition agency’s setup, advocacy and...
This report critically analyses the introduction and development of a system of competition law in Poland prior to 2016, a period when the country underwent two fundamental transitions: from a centrally planned economy to free markets and from communism to democracy. In particular, the study focuses on the competition agency's setup, advocacy and e...
he aim of this working paper is to preliminary identify those processes triggered by the rise of illiberal populism which have a potential to adversely affect the competition law system. It is hypothesized that these processes may be of a three-fold nature:
1) they may involve limitations on the independence and expertise of the institutions respo...
The report discusses the enforcement of competition law in Poland in the context of the digital economy. Topics covered include the goals of competition law in the digital era, market power and market definition, the characteristics of behaviour considered anticompetitive, as well as regulatory overlaps and enforcement challenges. The report has be...
This article discusses the implications of the rule of law crisis on a core area of EU law: competition law. It analyses the reforms of the judiciary in selected EU Member States and the reaction of EU institutions. The article shows that the reforms of the judiciary give rise to doubts regarding the independence and expertise of courts which are r...
This chapter analyses the transposition of the Antitrust Damages Directive in Poland. It first provides an overview of the transposition procedure, focusing on the main stages of the implementation process that culminated in the adoption of the Act on actions for damages for infringements of the competition law provisions (ACD) that came into force...
The article compares the application of the right of defence in competition law proceedings by seven National Competition Authorities (NCAs) of Central and Eastern Europe (CEE). In particular, the article focuses on four sub-rights that are part of the right of defence: right to be informed; right to access the file; privilege against self-incrimin...
Under art.11 Regulation 1/2003, every national competition authority (NCA) of the EU Member States must notify the EU Commission about the opening of formal investigations for a potential infringement of arts 101-102 TFEU and the envisaged decisions in that regard. The enforcement statistics for the first decade of Regulation 1/2003 indicate that t...
The article compares the application of the right of defence in competition law proceedings by seven National Competition Authorities (NCAs) of Central and Eastern Europe (CEE). In particular, the article focuses on four sub-rights that are part of the right of defence: right to be informed; right to access the file; privilege against self-incrimin...
The article attempts to answer the question: to what extent can non-competition considerations play a role in the application of Polish competition law? Background analysis of EU competition law is also provided. Attention is focused on the meaning of 'public interest' invoked in Article 1 of the Polish Competition Act. It is analysed whether publi...
The Polish Supreme Court made a reference for preliminary ruling in a case involving double fine for the same anticompetitive conduct (first fine for violation of Polish competition law and second fine for violation of Article 102 TFEU). The Court asks whether the identity of interest protected can be considered as a separate condition in the conte...
The article aims at presenting - from Poland's perspective - the challenges in building an adequate system of administrative sanctions. It is claimed that the efficiency of the functioning of this system should be balanced with the appropriate level of observance of procedural fairness as well as with appropriate rules governing the attribution of...
The article discusses the effectiveness and the intensity of judicial review in the Polish competition law system. First, it studies whether the judicial review offered by the 1st instance Court of Competition and Consumer Protection in Warsaw (SOKiK) is effective in practice. Next, the article analyzes whether Polish courts tend to defer to the fi...
Under Regulation 1/2003, NCAs of EU Member States must apply Articles 101-102 TFEU to anti-competitive conducts with an effect on intra-Community trade, and must notify the Commission of investigations and envisaged decisions based on Articles 101-102 TFEU. In the last decade, the NCAs of the "new" EU Member States have notified a lower number of e...
The United States (US) concept of judicial deference in administrative law limits the scope of judicial review of administrative agencies’ actions in light of agencies’ superior expertise and separation of powers arguments. It may serve as an interesting point of reference for the European discussion about adequate institutional balance between adm...
The EU courts have been criticized by competition law scholars for exercising insufficient review when it comes to the EU Commission’s determinations in factual and economic matters. It has also been claimed that the General Court gives the Commission too broad deference when it comes to the assessment of fine for violation of Article 101-102 of th...
The paper analyzes Polish legal system under which administrative sanctions are imposed. It is claimed that the efficiency of functioning of this system should be balanced with the appropriate level of observance of procedural fairness as well as with the appropriate rules governing the imputation of administrative liability. The paper provides the...
In May 2013 the President of the Office of Competition and Consumer Protection (UOKiK), the Polish Competition Authority, published its Annual Report for 2012. This piece provides an overview of the reported activities within the competition law & policy domain, and comments on some of them.
Download from: http://papers.ssrn.com/sol3/papers.cfm?abs...
This piece highlights and offers a brief analysis of the most important of the proposed changes to Polish competition law. The draft proposal envisages introduction of, inter alia, financial penalties for individuals, two-stage merger review process, important changes to the leniency program (including introduction of leniency plus), as well as suc...
This article analyses Polish competition procedure from the perspective of a) the right to be heard, and b) the right to receive information about the proceedings. It points out problems with access to information about competition proceedings which influence the level of protection of the right to be heard in these proceedings. In order to apprais...
The principle of proportionality applies to competition proceedings especially, when it comes to the exercise by the competition authority of its powers of inspection. Their use limits the economic freedom and right to privacy of the scrutinised undertakings in order to protect free competition. The use of inspection powers must thus be proportiona...
The book "Procedural fairness in the proceedings before the competition authority" (published in Polish) scrutinizes the level of protection of procedural fairness in the proceedings before two competition authorities: the President of the Polish Office of Competition and Consumers Protection (the CCP President) and the Commission of the European U...
The President of the Office of Competition and Consumers Protection (hereafter, UOKiK) issued a decision on 2 June 2006 (RKT-35/2006) finding that Marquard Media Polska has abused its dominant position (breach of Article 8(2)(1), (5) and 7 of the Act of 15 December 2000 on Competition and Consumers Protection2) by imposing unfair prices, counteract...
The concept of procedural fairness plays an important role in the enforcement of competition law, which must not only be effective but also fair. Thus, legal institutions should guarantee a proper level of protection of the values of procedural fairness. This paper is dedicated to the possible conflict between the guarantees of procedural fairness...
Procedural fairness can be considered one of the basic principles of contemporary democratic states. Its sources can be identified in the international law and constitutional laws as well as in the opinions of legal theoreticians. The procedural fairness shall be understood as the group of values that shall be protected by the legal guarantees prov...
Konstytucja RP w art. 62 odbiera osobom ubezwłasnowolnionym prawo do głosowania. Podpisana przez Polskę Konwencja ONZ o Prawach Osób Niepełnosprawnych z 13 grudnia 2006 r. przyznaje wprost niepełnosprawnym intelektualnie prawo do głosowania, bez względu na to, czy zostali oni ubezwłasnowolnieni. Dotychczasowe orzecznictwo Europejskiego Trybunału Pr...
In the article I argue that there is a need for the greater convergence of European procedural standards applicable in competition proceedings before the European Commission and competition proceedings before the National Competition Authorities. In order to prove this I use three main arguments. To begin with, I show that the differences in proced...
