Sprawiedliwość proceduralna w postępowaniu przed organem ...

Summary 335of the right to a fair trial when the mergers of the undertakings that can haveanticompetitive effects are at stake.In the conclusions of this second chapter of the book, the author definesthe procedural fairness as the body of values that shall be protectedby the legal guarantees provided in the procedural law. It is noted that theprotection of such process values may be independent from the preliminaryassessment of the final result of the process. These values are as follows:a possibility to be heard (process participation), equality (especiallyin access to the process), possibility to defend, confidentiality (of the economicallyvaluable information) and the judicial review (resulting in thejudicial control over administrative proceedings).The right to be heardThe third chapter of the book aims at answering whether the right tobe heard is respected in the proceedings before the competition authorities.The biggest deficiency in the proceedings before the CCP Presidentis that the undertakings are informed only generally about the chargesraised against them. It is not rare that they receive decisions on the commencementof antimonopoly proceedings in cases of the practices restrictingcompetition where only the legal basis is quoted, and the factual andlegal justification is missing. This differs significantly to the EU competitionproceedings where the statement of objections contains full factualand legal description of the presumed infringement as well as the preliminarycalculation of fine. When it comes to antimonopoly proceedings incases of concentration, the undertakings that notify the concentration arenot informed during the course of the proceedings about the objections ofthe CCP President against the planned concentration. As a consequence,they cannot propose remedies. Furthermore, the analysis of the decisionsof the CCP President in cases of concentration suggests that the party tothe proceedings is not given a chance to comment on all the evidence collectedduring proceedings before the final decision is made.Likewise, under the Polish procedure, undertakings are also not informedabout the beginning of the explanatory proceedings preceding theantimonopoly proceedings. The right to be heard is not sufficiently respectedin the proceedings before the CCP President and the Commission alsobecause of very limited use of the oral hearing. In Poland the decision onwhether to convene it is discretionary - parties may not contact directlythe decision makers to present directly the exculpatory evidence.