Sustainability and Competition Global Practice Guide |
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Poland |
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(Europe)
Firm
Wardynski & Partners
Contributors
Antoni Bolecki |
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| Are ESG measures/sustainability agreements included in your jurisdictional competition regime? | In Poland, the principle of sustainable development has been given the status of a fundamental right arising from the provisions of the Constitution of the Republic of Poland by which: The Republic of Poland is to safeguard the independence and inviolability of its territory, ensure the freedoms and rights of citizens, the security of citizens, guard the national heritage, and ensure the protection of the environment being guided by the principle of sustainable development (article 5); however, ESG measures or sustainability agreements are not expressly included in the Polish competition regime. ESG measures are rather included in the jurisdictional financial regime than within competition regulations. In particular, ESG measures arising from EU or Polish national legislation include the various disclosures in the following acts:
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| If ESG measures/sustainability agreements are not included in your jurisdictional competition regime, do you foresee any new regulations coming into place in 2022? | We do not foresee any new regulations coming into place in 2022 in terms of ESG measures or sustainability agreements within the Polish competition regime. In terms of financial law, however, the following changes relating to ESG are envisaged:
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| Has your Authority issued any guidance on the role, if any, of ESG in the competition law analysis applied to mergers or other conduct? | No, such guidance has not been issued by the Polish Competition Authority (Prezes UrzÄ™du Ochrony Konkurencji i Konsumentów) (“PCA”) yet. |
| Has your jurisdiction issued guidance regarding competitor collaborations or participating in industry working groups, and if so, do they specifically address ESG? | No, such guidance has not been issued by the PCA. |
| Can parties seek specific guidance from authorities on proposed ESG initiatives? | There is no such formal procedure, however, the entrepreneurs can seek guidance from the PCA based on the general principles of administrative procedure. Such formal procedure also does not exist in the scope of the financial sector. Polish Financial Supervision Authority (Komisja Nadzoru Finansowego) (“PFSA”), the entity supervising the broadest group of entities obligated to disclose ESG factors, however, posts on its website Q&As on ESG and allows for the market users to submit questions on SFDR by e-mail, however, this is not official guidance procedure. At the same time, when inspecting, the PFSA has the right to issue recommendations to be implemented by the entity under supervision, if irregularities are found. |
| How, if at all, does your jurisdiction quantify or calculate the ESG effects? | Polish jurisdiction does not quantify or calculate ESG effects within the competition regime. Core and sector indicators for the financial market, in particular, concerning reporting, have been developed on the basis of existing and planned regulations and are available on the Warsaw Stock Exchange (“WSE”) website and in the WSE's “Guidelines for ESG Reporting. Guide for Companies Listed on the WSE". In addition, factors such as relevance to investors and other stakeholders, current reporting practices of companies and the possible effect of individual ESG issues on a company's operations and financial performance were taken into account. Each indicator is assigned a unit of measurement, which can vary depending on the link between the indicator and the relevant regulations. In addition, each indicator is marked with a code. |
| What does your legal authority currently permit even if your agency is not yet active on this topic? | As indicated in our response to "Are ESG measures/sustainability agreements included in your jurisdictional competition regime?", the ESG measures are rather included in the jurisdictional financial regime than within competition regulations. In this regard, WSE issued in 2021 "Guidelines for ESG Reporting. Guide for Companies Listed on the WSE" to support public companies in the ESG reporting process. |
| Are there precedents that involved ESG/sustainability matters in your country? If so please provide a short description. | The most important reported cases in point that involved sustainability matters in Poland in the past years are: Falsification of the composition of clothing as unfair market practice: PCA has issued decisions regarding falsification of the composition of clothing (e.g. No. RBG-1/2022 of March 17, 2022 and No. DOZIK 5/2022 of March 16, 2022), in which it indicated that issues related to ecologies, such as the environmental effect of a product, or packaging, can be important information for consumers and, therefore, influence a decision to purchase a particular product. Misleading consumers about the raw materials in textile products could affect consumer behavior in deciding whether to purchase and could affect consumer behavior after the conclusion of a contract that infringes the collective interests of consumers, and constitutes an unfair market practice. Environmental pollution can infringe the right to health, liberty, or privacy: on May 28, 2021, the Supreme Court (Case No. III CZP 27/20) stated that the right to live in a clean environment enables one to breathe air that meets quality standards is not a personal right subject to protection under the Civil Code. At the same time, it emphasized that the effects of environmental pollution can be combated by invoking such personal rights as the right to health, freedom, or privacy. On December 9, 2021, the District Court of Gliwice (III Ca 1548/18) stated that state treasury omissions resulted in tragic air quality in Rybnik (a city in Poland) which led to infringements of the plaintiff's personal rights to such as the right to health, freedom, inviolability of a dwelling, and awarded the plaintiff compensation of PLN 30,000 (approx. EUR 6,370). |
| Is there specific antitrust regulation in your jurisdiction to be aware of which might give rise to private or class action ESG litigation? | There is no specific antitrust regulation in Poland that might give rise to private or class action ESG litigation. The current Polish antitrust regulation, in particular, the Act on Competition and Consumer Protection and the Act on Counteracting Unfair Market Practices might, however, give rise to a private or class action in terms of greenwashing as an activity that is an unfair market practice infringing collective consumers interests. By using environmental marketing without any basis for doing so, an entrepreneur, and the agency that prepared the advertisement, expose themselves to civil law private or class action from consumers and competitors (e.g. a claim to stop using misleading advertising and to pay damages) or the risk of administrative proceedings. If such marketing is found to constitute a practice that violates the collective interests of consumers, the PCA may impose a penalty of up to 10% of the turnover achieved in a previous calendar year. |
Sustainability and Competition Global Practice Guide
In Poland, the principle of sustainable development has been given the status of a fundamental right arising from the provisions of the Constitution of the Republic of Poland by which: The Republic of Poland is to safeguard the independence and inviolability of its territory, ensure the freedoms and rights of citizens, the security of citizens, guard the national heritage, and ensure the protection of the environment being guided by the principle of sustainable development (article 5); however, ESG measures or sustainability agreements are not expressly included in the Polish competition regime.
ESG measures are rather included in the jurisdictional financial regime than within competition regulations. In particular, ESG measures arising from EU or Polish national legislation include the various disclosures in the following acts:
- Accounting Act of 29 September 1994 (unified text: Journal of Laws of 2021, item 217, as further amended), implementing Directive 2014/05/EU of the European Parliament and of the Council of 22 October 2014 amending Directive 2013/34/EU (OJ P 045 14.6.1962, p. 1385) (“NFRD”) to Polish law;
- Regulation of the Minister of Finance of 29 March 2018 on current and periodic information provided by issuers of securities and conditions for recognizing as equivalent information required by the laws of a non-member state (“Regulation”) implementing NFRD to Polish law;
- Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088 (OJ L 198, 22.6.2020, p. 13–43) (“Taxonomy”);
- Regulation (EU) 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainabilityâ€related disclosures in the financial services sector (OJ L 317 9.12.2019, p. 1) (“SFDR”);
- Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and amending Regulation (EU) No 648/2012 (OJ L 176 27.6.2013, p. 1) (“CRR”);
- Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014 (OJ L 171 29.6.2016, p. 1);
- Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 2017 laying down a general framework for securitization and creating a specific framework for simple, transparent and standardized securitization, and amending Directives 2009/65/EC, 2009/138/EC and 2011/61/EU and Regulations (EC) No 1060/2009 and (EU) No 648/2012 (OJ L 347 28.12.2017, p. 35) (“STS Regulation”).
We do not foresee any new regulations coming into place in 2022 in terms of ESG measures or sustainability agreements within the Polish competition regime.
In terms of financial law, however, the following changes relating to ESG are envisaged:
- Revision of the NFRD;
- Changes to Article 449a of the CRR;
- Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937;
- Changes to the STS Regulation;
- Changes regarding the proposal of a Regulation of the European Parliament and of the Council on European green bonds.
No, such guidance has not been issued by the Polish Competition Authority (Prezes UrzÄ™du Ochrony Konkurencji i Konsumentów) (“PCA”) yet.
No, such guidance has not been issued by the PCA.
There is no such formal procedure, however, the entrepreneurs can seek guidance from the PCA based on the general principles of administrative procedure.
Such formal procedure also does not exist in the scope of the financial sector. Polish Financial Supervision Authority (Komisja Nadzoru Finansowego) (“PFSA”), the entity supervising the broadest group of entities obligated to disclose ESG factors, however, posts on its website Q&As on ESG and allows for the market users to submit questions on SFDR by e-mail, however, this is not official guidance procedure. At the same time, when inspecting, the PFSA has the right to issue recommendations to be implemented by the entity under supervision, if irregularities are found.
Polish jurisdiction does not quantify or calculate ESG effects within the competition regime.
Core and sector indicators for the financial market, in particular, concerning reporting, have been developed on the basis of existing and planned regulations and are available on the Warsaw Stock Exchange (“WSE”) website and in the WSE's “Guidelines for ESG Reporting. Guide for Companies Listed on the WSE". In addition, factors such as relevance to investors and other stakeholders, current reporting practices of companies and the possible effect of individual ESG issues on a company's operations and financial performance were taken into account. Each indicator is assigned a unit of measurement, which can vary depending on the link between the indicator and the relevant regulations. In addition, each indicator is marked with a code.
As indicated in our response to "Are ESG measures/sustainability agreements included in your jurisdictional competition regime?", the ESG measures are rather included in the jurisdictional financial regime than within competition regulations. In this regard, WSE issued in 2021 "Guidelines for ESG Reporting. Guide for Companies Listed on the WSE" to support public companies in the ESG reporting process.
The most important reported cases in point that involved sustainability matters in Poland in the past years are:
Falsification of the composition of clothing as unfair market practice: PCA has issued decisions regarding falsification of the composition of clothing (e.g. No. RBG-1/2022 of March 17, 2022 and No. DOZIK 5/2022 of March 16, 2022), in which it indicated that issues related to ecologies, such as the environmental effect of a product, or packaging, can be important information for consumers and, therefore, influence a decision to purchase a particular product. Misleading consumers about the raw materials in textile products could affect consumer behavior in deciding whether to purchase and could affect consumer behavior after the conclusion of a contract that infringes the collective interests of consumers, and constitutes an unfair market practice.
Environmental pollution can infringe the right to health, liberty, or privacy: on May 28, 2021, the Supreme Court (Case No. III CZP 27/20) stated that the right to live in a clean environment enables one to breathe air that meets quality standards is not a personal right subject to protection under the Civil Code. At the same time, it emphasized that the effects of environmental pollution can be combated by invoking such personal rights as the right to health, freedom, or privacy. On December 9, 2021, the District Court of Gliwice (III Ca 1548/18) stated that state treasury omissions resulted in tragic air quality in Rybnik (a city in Poland) which led to infringements of the plaintiff's personal rights to such as the right to health, freedom, inviolability of a dwelling, and awarded the plaintiff compensation of PLN 30,000 (approx. EUR 6,370).
There is no specific antitrust regulation in Poland that might give rise to private or class action ESG litigation. The current Polish antitrust regulation, in particular, the Act on Competition and Consumer Protection and the Act on Counteracting Unfair Market Practices might, however, give rise to a private or class action in terms of greenwashing as an activity that is an unfair market practice infringing collective consumers interests. By using environmental marketing without any basis for doing so, an entrepreneur, and the agency that prepared the advertisement, expose themselves to civil law private or class action from consumers and competitors (e.g. a claim to stop using misleading advertising and to pay damages) or the risk of administrative proceedings. If such marketing is found to constitute a practice that violates the collective interests of consumers, the PCA may impose a penalty of up to 10% of the turnover achieved in a previous calendar year.