The President of the Office of Competition and Consumer Protection imposed a fine of nearly PLN 2.5 million on Przedsiębiorstwo Wielobranżowe Atex. The entrepreneur imposed coal sales prices on his trading partners. As a result, they could not sell fuel cheaper.
The distributors were apparently bound by agency contracts with Atex, but in fact they were independent entities that should have been free to set prices.
- The President of the Office of Competition and Consumer Protection, Tomasz Chróstny, imposed a fine of nearly PLN 2.5 million on Przedsiębiorstwo Wielobranżowe Atex.
- The entrepreneur imposed coal sales prices on his trading partners. As a result, they could not sell fuel cheaper.
- The distributors were apparently bound by agency contracts with Atex, but in fact they were independent entities that should have been free to set prices.
Przedsiębiorstwo Wielobranżowe Atex is mainly engaged in the import, distribution and wholesale and retail sale of hard coal, among others. eco-pea coal, eco-pea coal and coke, as well as wood pellets. The company sells products independently or through a network of associates.
The contracts concluded with them were supposed to correspond to the agency’s contracts, because the co-workers were supposed to sell fuel goods on behalf of Atex.
However, the proceedings conducted by the President of the Office of Competition and Consumer Protection showed that in fact the contractors were independent distributors and the sale prices of the products were not permitted.
Atex imposed prices on independent contractors and fuel distributors
Atex’s contractors could only sell fuel at prices set by the company. They had no right to change the imposed rates or to grant customers discounts or rebates.
We checked the activities of Atex and its associates in terms of economic and financial risks. The proceedings showed that these risks were transferred to contractors. This means that under competition law they were not Atex agents, but independent distributors. In such a case, they should shape their own prices, which cannot be imposed on them or set in consultation with other entities. Our decision is also a signal to the market that it is not enough to call the contract an agency to be able to violate competition law – says the President of the Office of Competition and Consumer Protection, Tomasz Chróstny.
What should an agency contract look like?
According to the Office of Competition and Consumer Protection, an agency agreement occurs when the person accepting the order (agent) receives a power of attorney to sell goods delivered by the principal and to his benefit.
Competition law assumes that an agent is not an independent entrepreneur who independently shapes its market behavior, but rather a part of the same enterprise as the principal. In this case, it is allowed to use the same sales price because it is done within one entity.
However, a situation in which the agency agreement is only apparent is unacceptable. This appearance is examined by looking at the economic and financial risks that the collaborator bears. If most of them are transferred to him, he is not an agent because he cannot be said to be part of the same enterprise as the principal.
This was the case with Atex and its associates. They incurred costs and economic risks related to, among others: with maintaining fuel stocks, their insurance, and transport costs – emphasize UOKiK experts.
Severe financial penalty for Atex. How much was it?
For the use of competition-restricting practices, the President of the Office of Competition and Consumer Protection imposed a fine on Atex in the amount of almost PLN 2.5 million (PLN 2,448,959.22). The decision is not final and may be appealed to the court.
The maximum penalty for participating in an agreement restricting competition is 10%. turnover for the entrepreneur, it is also possible to impose a financial penalty of up to PLN 2 million on managers directly responsible for the prohibited practice.
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