The antimonopoly act of 1987 (An attempt to evaluate basic solutions)

The subject-matter of the article is an attempt to evaluate basic legal solutions of the Act of January 28, 1987 on counteracting monopolistic practices (Dz. U. nr 3, sec. 18). This act, unprecedented in the Polish legislation, is part of the economic reform. Polish economy is characterized by a high degree of concentration of production and monopolization of the market. With the increase of legal and economic independence of socialized enterprises more widespread became the tendency to take advantage of priviledged market position and to apply different monopolistic practices infringing the social interest and the interests of other producers and consumers. Such negative phenomena are a serious threat for the present economic reform. Therefore they need to be neutralized by the state through its broad and complex antimonopoly policy. One of the elements of that policy is the Act of 1987. The Act does not fight monopolies understood as organizational structures. The existence of monopolies is neither forbidden by law nor it is subject to legal sanctions. The Act, however, fights the most deterimental external aspects of monopolies, i.e. specific practices and monopolistic agreements. It is the basic purpose of the Act. Another important aim of the Act is protecting competition. The Act encompasses wide subjective and objective range. It is concerned with virtually all economic activity conducted by all legal and natural persons irrespective of the form of property, size or the degree of monopolizing the market since in conditions of an unbalanced market any producer, big or small, may behave or behaves like a true monopolist. The author presents the catalogue of monopolistic practices and agreements forbidden by the Act (Art. 8, 9, 11, 13, 14). He formulates several reservations and doubts concerning the narrow range of forbidden practices and the liberal attitude of the legislator towards the perpetrators of such practices. In particular, he criticizes the solution according to which monopolistic practices and agreements forbidden by the Act are not absolutely invalid (ex lege) but are subject to invalidation by an antimonopoly organ. In the final part of the article the author discusses the tasks and competences of an antimonopoly organ with respect to counteracting monopolistic practices and shaping the antimonopoly policy (Art. 4, 5). The author critically evaluates the placement of an antimonopoly organ as an administrative organ in the structure of State. In the author's opinion, vesting in the Minister of Finance additional functions of an antimonopoly organ is not the best solution. Rather, a special Antimonopoly Office subordinated directly to the Sejm or the Council of State should have been created.Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/201