Harmonisation of the Powers of NCAs in EU Member States. A Few Remarks on the Basis of the Experience of the Czech Republic and Poland After the Deadline for Transposition of the ECN+ Directive Has Passed

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I. Introduction
Council Regulation (EC) 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty 1 , which came into force on 1 May 2004, introduced decentralised ex post enforcement of the prohibitions contained in Articles 101 and 102 of the Treaty on the Functioning of the European Union (hereinafter: TFEU) 2 .This act obliges the competition authorities of the EU Member States (National Competition Authorities; hereinafter: NCAs) to apply Articles 101 and 102 TFEU -in parallel to national competition law -to agreements, to decisions by associations of undertakings, to concerted practices and to the abuse of a dominant position, which are capable of affecting trade between Member States 3 .Regulation 1/2003 had not, however, harmonised institutional rules, procedures and sanctions across Member States, except for the rules contained in its Articles 5 and 35(4) (Wils, 2017, p. 13).
After ten years of the enforcement of Regulation 1/2003, the European Commission (hereinafter: the Commission) summarized that thanks to this change, NCAs have become a key pillar of the application 1 [2003] OJ L1/1, hereinafter: Regulation 1/2003. 2 Consolidated Version [2012] OJ C326/1, hereinafter: TFEU. 3 Article 3(1) of the Regulation 1/2003. of EU competition rules 4 .It also emphasized that the cooperation between the Commission and the NCAs has led to a substantial level of convergence in the application of these rules but -unfortunately -divergences subsisted 5 .Regarding the powers of NCAs, it was stressed that differences remained throughout the EU 6 and that, for the purposes of effective enforcement, it is necessary to ensure that all NCAs have a complete set of powers at their disposal.These must be comprehensive in scope and effective, in particular, NCAs must have effective investigative and decision-making powers 7 .
To overcome the identifi ed problems, the Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (hereinafter: ECN+ Directive) 8 was adopted.Its declared objective is to ensure that NCAs have guarantees of independence, resources, as well as enforcement and fi ning powers necessary to apply Articles 101 and 102 TFEU effectively, and that these guarantees are the same, in order to avoid different outcomes in the cases of the parallel application of national competition law and EU law 9 .This directive obliged EU Member States to harmonize, amongst others, the investigative (i.e.power to inspect business and non-business premises, requests for information and interviews) 10 and decision-making powers of the NCAs (i.e.fi nding and termination of infringements, interim measures and commitments) 11 .

This article critically discusses how current legal frameworks in the Czech Republic and
Poland correspond to the ECN+ Directive's requirements with regard to investigative and decisionmaking powers of NCAs.For that purpose, the authors analyse the EU obligations of Member States under the ECN+ Directive with regard to NCAs' powers as well as -within this scope -legal frameworks in the Czech Republic and Poland.Subsequently, the article compares the manner of regulating these issues in the national legal orders of these countries to the standard required by ECN+ Directive.The aim of this publication is to verify whether, and how, these two EU Member States meet the requirements placed on the powers of NCAs, and to determine any potential differences in the approach taken by national legislators.
The authors decided to focus on the above indicated Member States for the following reasons.
Firstly, those two EU Member States have not transposed the ECN+ Directive within the prescribed deadline (4 February 2021) 12 .This does not, however, necessarily mean that their rules governing the powers of the NCAs were not in line with this directive from the beginning.Secondly, both of the countries joined the EU when Regulation 1/2003 was in force.That's why decentralised ex post enforcement of EU competition law was for them -on one hand -revolutionary 13 buton the other -the enforcement of the prohibitions of Article 101 and 102 TFEU under the rules of The wording of Articles 6 and 7 of the ECN+ Directive, which obliges EU Member States to ensure that their NCAs have the power to inspect business and non-business premises, recalls respectively Articles 20 and 21 of Regulation 1/2003.This leads to the conclusion that the desired shape of NCAs' power to inspect business and non-business premises was modelled on similar powers granted to the Commission (Marino, 2020, p. 16).
The ECN+ Directive's requirements towards the powers to inspect premises depend on the type of premise where the inspection is carried out.This act obliges EU Member States to adopt national rules allowing NCAs to interfere with the right to privacy of undertakings and associations of undertakings (inspections of business premises) to a greater degree than in the case of inspections of non-business premises.There are three primarily aspects here.First of all, NCAs shall be empowered to conduct inspections of business premises in a wider scope of situations.They shall have the power to conduct all necessary unannounced inspections of such premises for the application of Articles 101 and 102 TFEU.By contrast, in the cases of non-business premises such possibility shall be granted only if the following conditions are met jointly: (1) there is a reasonable suspicion that books or other records related to the business and to the subject matter of the inspection are being kept in such premise; and (2) if those items may be relevant to proving an infringement of Article 101 or Article 102 TFEU.Secondly, the minimum set of powers that NCAs shall have in connection to inspections of business premises are wider than in the case of inspections of other premises.The ECN+ Directive indicates the minimum set of powers that shall be granted in connection to the conduct of such inspections.In the case of inspections of both -business and non-business -premises, NCAs shall have, at least: (1) the power to enter premises (land, and means of transport); (2) the power to examine the books and other records related to the business, irrespective of the medium on which they are stored, and to have the right to access any information which is accessible to the entity where the inspection is carried out; and (3) the power to take or obtain, in any form, copies of, or extracts from such books or records and, where a NCA considers it appropriate, to continue making such searches for information and the selection of copies or extracts at the premises of the itself NCA or at any other designated 21 ECN+ Directive, Art 9.
premises 22 .In the case of inspections of business premises, NCAs shall also have two additional powers: (4) the power to seal any business premises and books or records for the period and to the extent necessary for the inspection; and (5) the power to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject matter and purpose of the inspection as well as to record the answers 23 .These are the minimum required powers that NCAs should be granted.However, EU Member States are authorised to empower their NCAs to conduct also other actions, not specifi ed in this directive.Thirdly, the ECN+ Directive allows EU Member States to decide whether unannounced inspections of business premises require prior authorization of such inspection by a national judicial authority 24 .By contrast, inspections of non-business premises cannot be carried out without such prior authorisation 25 .In addition to the minimum set of powers connected to unannounced inspection of premises, the ECN+ Directive also obliges EU Member States to provide measures that guarantee that an entity being inspected would be required to submit to such inspection.In particular, EU Member States shall ensure that where such entity opposes an inspection, NCAs shall be able to obtain the necessary assistance of the police 26 .
It should also be noted that all EU Member States are signatory of the European Convention of Human Rights (ECHR), which protects the right to privacy 27 , and stipulates the conditions where an interference with the right to privacy is not prohibited 28 .Such interference is allowed provided that it: (1) is in accordance with the law; (2) is necessary in a democratic society; and (3) is justifi ed by public interest 29 .Therefore, national laws transposing the ECN+ Directive shall also comply with the requirements of the ECHR.Due to the above reasons, while implementing and applying their legal solutions regarding inspections, EU Member States should take into consideration the jurisprudence of EU courts 30 , in cases regarding inspections conducted on the basis of Commission decisions as well as the jurisprudence of European Court of Human Rights (ECtHR) 31 . 22ECN+ Directive, Art 6(1), 7(3). 23ECN+ Directive, Art 6(1). 24ECN+ Directive, Art 6(3). 25ECN+ Directive, Art 7(2). 26The directive indicates that such assistance may also be obtained as a precautionary measure (ECN+ Directive, Art 6(2), 7(3)). 27ECHR, Art 8(1). 28Interference with the right to privacy is not prohibited under the ECHR provided that it: (1) is in accordance with the law; (2) is necessary in a democratic society; and (3) is justifi ed by the public interest (ECHR, Art 8(2)). 29  (Targański, 2019, p. 196).

The Czech Republic
The Czech Competition Act (hereinafter: CCA) 32 provides the possibility of conducting an inspection of business and non-business premises within the framework of its Chapter 5, which refers to proceedings before the Czech NCA 33 .The decision-making practice in the area of the power to inspect premises brought about several interesting points in the Czech Republic.
One of the most interesting Czech case-law that is related to the power of the NCA to inspect business and non-business premises is the Delta Pekárny case 34 .In 2005, the Chairman of the NCA confi rmed, in his 2 nd instance decision, the imposition of the highest possible administrative fi ne of 300,000 CZK (approximately EUR 12,000) on the Delta bakery.The said company violated the Law by not allowing the employees of the Czech NCA to check all business records stored in an electronic form at its premises in Prague-Vysočany in November 2003.Delta bakery further refused to submit to the inspection concerning two of the documents taken by the NCA's employees as part of their investigation.The employees of Delta bakery identifi ed these two documents as private correspondence, even though their executives sent them to other executives of the company, and even to the general director of a competing undertaking, which was also being investigated by the NCA at that time.
Meanwhile, the subject of these two documents (e-mails) certainly did not indicate their private nature as they were entitled "Action plan 2003" and "An overview of the current composition of the bodies of the Companies which should be changed".It could be said, therefore, that these were reports with a close relationship to the company and its competitive actions, which the NCA was investigating at the time 35 .
Later, the NCA issued a decision fi nding an agreement restricting competition and imposing a penalty.Delta appealed the decisions to the NCA, to the Regional Court in Brno, to the Czech Supreme Administrative Court and subsequently to the Czech Constitutional Court.Delta questioned the legality of obtaining evidence during their inspection and the legitimacy of its execution.According to Delta, an inspection conducted without the prior authorization of the court and without effective control by an independent authority, violated the Czech Constitution and Article 8 of the ECHR.
The NCA, as well as the courts, rejected the appeals arguing that the contested inspection was lawful and that Czech law provided entrepreneurs with suffi cient means to challenge the very fact of an inspection and the way in which it had been carried out.In the Delta Pekárny judgment, the ECtHR argued that in the absence of prior consent of a court to conduct an inspection by the competition authority, the protection of individual rights resulting from the initiation of a control process that is not disproportionate and justifi ed, should be guaranteed by ex post judicial review.
Under the Czech law, the NCA was entitled to conduct inspections in order to verify the existence of evidence of suspected anticompetitive practices, but the existing legal measures did not allow companies to judicially review the very fact of the initiation of an inspection, neither ex ante nor ex post.In this case, the notifi cation of the inspection was authorized by the senior director of the 32 Act No. 143/2001 Coll., on the protection of competition and on the amendment of certain laws.Hereinafter: CCA. 33See: CCA, Art.21(f-g). 34Decision of the Czech NCA No S 233C/03-11688/2006/620 of 27 June 2006. 35In the relevant administrative procedure, the NCA subsequently imposed on the companies DELTA PEKÁRNY a.s., ODKOLEK a.s. and PENAM spol.on which the presumptions of an anticompetitive practice were based (Targański, 2019, p. 196).
The two appeal proceedings initiated by Delta before national courts, focused on the amount of the fi ne imposed for the obstruction of the contested inspection, and on substantive fi nding of the NCA that Delta was party to an anticompetitive practice.Finally, a violation of Article 8 of ECHR was found by the ECtHR, as Czech courts did not review the reasons for the initiation of the inspection, its duration, goal, scope and necessity.As such, the intervention into Delta's rights protected under Article 8 of ECHR could not be considered as proportionate to the legitimate goal 36 .Current Czech legislation on on-site investigations, within the CCA, gives the Czech NCA signifi cant powers in terms of the scope and method of its implementation -basically the only limit of the local inspection of business and non-business premises is the existence of a suffi cient suspicion of a violation of competition rules.On the other hand, recent jurisprudence places high demands on proving the reasonableness of such suspicion.Whether the use of an inspection is appropriate in a particular case always depends on the amount and credibility of the evidence available to the Czech NCA before an inspection is carried out.While assessing whether the interest in carrying out an inspection and the interest in protecting effective competition outbalances the right to privacy and home inviolability, the reasonableness of the suspicion itself should be considered, and the likelihood that an infringement occurs, as well as how serious the practice is, how large the relevant market is, and what type of products or services may be affected.The temporal aspect should be taken into the consideration as well.As far as the right to privacy and home inviolability are concerned, courts should, within their decision-making practice consider, in particular, that the inspection carried out by Czech NCA is not as invasive as in cases carried out by criminal law enforcement authorities.Also, the sanction that the Czech NCA imposes for conduct that is investigated within a local inspection is governed by the administrative law regime and is therefore lower (Nejezchleb, 2021, p. 65).
Czech law governing its NCA's power of inspection is not entirely in line with the provisions of the ECN+ Directive because it does not include the requirement of the necessary police assistance where the investigated undertaking refuses to submit to an inspection.Unfortunately, the Czech draft law does not include such requirement either.Frankly, this omission is unfortunate for two reasons.Firstly, the provisions of the ECN+ Directive, which require police assistance during an inspection, are very similar to the requirements of Regulation 1/2003 37 , which requires the necessary assistance of the police during inspections carried out by the Commission.Secondly, the Czech NCA has been trying to include a provision related to necessary assistance of the police, or an equivalent enforcement authority, into the CCA ever since 2003, when it started preparing the fi rst amendment to the CCA aimed at ensuring its convergence with Regulation 1/2003 (Petr,   2008, p. 220) Czech law, and its execution in practice caused some diffi culties (Petr, 2008, p. 220).
With regard to the ECN+ Directive's requirement that different NCAs can participate in their respective investigations, the Czech NCA is indeed able to participate in investigative actions taken by another competition authority as the "requesting" entity 39 .However, in order to implement the above rule, it is also necessary for the Czech NCA to be able to carry out investigative actions based on the request of another NCA.This duty is apparently fulfi lled thanks to the provision of Article 20a paragraph 3 letter f) of the CCA, which authorizes the Czech NCA to "conduct an investigation", which apparently includes other investigative actions, in addition to on-site investigations.
With regard to the ECN+ Directive's requirement related to the participation of employees of other competition authority in an investigative action(s), this is already possible in relation to on-site investigations, in which "other persons authorized by the Offi ce" 40 can also participate.However, in the case of interrogations and oral proceedings, those would not be possible according to current Czech legislation and practice.As such, this requirement of the ECN+ Directive should have been added to Czech law.However, the proposal does not bring anything new in this respect.

Poland
Polish law provides for the possibility to conduct an "inspection" (in Polish: kontrola) and a "search" (in Polish: przeszukanie) of business premises.Initially, the search was an investigative tool that could have been used during an inspection.However, due to many diffi culties arising from this connection, as of 15 January 2015 the legislature decided to separate the two enforcement tools 41 .The main difference between an inspection and a search is related to the role of the authorities and the obligations of the undertaking while using each of those tools.An inspection is a tool to obtain information 42 , whereas a search is a tool to fi nd and obtain information 43 .
It means that an inspection requires the cooperation between the inspected undertaking and the NCA, whereas the role of the authority conducting it is more active during a search.Therefore, a search interferes with the right to privacy more than an inspection.In the literature an inspection and a search are considered two separate enforcement instruments (Bernatt, 2011a in non-business premises shall be conducted by the NCA, with the necessary assistance of the police or of an equivalent enforcement authority 52 .Therefore, there was a need of a legislative intervention.The Amendment Act has completely changed the wording of Art 91 of the ACCP in a way suffi cient to ensure Poland's compliance with the ECN+ Directive in this regard 53 .

EU legal framework
Regarding the power to request for information, the ECN+ Directive obliges EU Member States to ensure that their NCAs are authorized to request relevant information from two groups of entities: (1) undertakings and associations of undertakings, and (2) any other natural or legal persons.In the case of undertakings and associations of undertakings, NCAs shall have the power to request for any information which is accessible to the entity required to provide them.
However, the request shall be proportionate and shall not compel the addressees of the requests to admit an infringement of Articles 101 and 102 TFEU.In the case of any other natural or legal persons, the ECN+ Directive obliges EU Member States to ensure that their NCAs are empowered to request any information that may be relevant for the application of Articles 101 and 102 TFEU.
The directive's requirement is that NCAs, when requesting information, shall specify the deadline that has to be reasonable 54 .

The Czech Republic
In general, the Czech NCA can request information from any entity that might be necessary for the purposes of investigating whether a violation of competition law has occurred in a relevant case or not.In principle, it is at the discretion of a NCA whether, and when to request information, as well as on what facts it decides to investigate.However, the competition authority's discretion regarding the use of a given investigative power is not unlimited.It is always necessary to proceed in accordance with the legal regulation of the given investigative power, and the fundamental rights of the subjects against whom the given investigative power is used.When this investigative power is used, there might be a confl ict between -on one hand -the fundamental rights of the entities that the competition authority investigates, and the general interest of the undertaking -and in maintaining effective economic competition on the market and detecting violations of competition law 55 .
The CCA is already in line with these EU requirements, as is Czech judicial practice.Therefore, this ECN+ Directive's requirement is not problematic.The Czech NCA states, within its decisional practise, that as regards the cooperation of the parties during the proceedings with the NCA, such cooperation is, in itself, not a mitigating factor.However, cooperation that extends beyond by norm can be seen as mitigating circumstance, which would allow the NCA to signifi cantly accelerate the proceedings, not in the fact that the entity in question fulfi ls its legal obligations properly and on time.The obligation to provide information to the NCA comes from the law, and it is therefore an obligation for parties to provide true and correct information in a timely manner.The fact that the subject does not obstruct the proceedings is also not seen as a mitigating factor, as this is again its fully expected behaviour 56 .
At the same time, Article 21e of CCA states that anyone who provides documents and information to the Czech NCA (including business records that may be important for clarifying the subject of the proceedings) is obliged to provide them complete, correct and true.Simultaneously, everyone is obliged to provide the NCA with business records upon its written request, and within the specifi ed period.Failure to fulfi l the obligation to provide the information may result in an administrative fi ne.
The ECN+ Directive also establishes other rules regarding a request for information 57 ; however, they seem to be also based on Regulation 1/2003.For example, a request for information can cover all information that businesses have access to.The scope of the request must be reasonable and must not force the addressee to admit to a violation of competition law, which is specifi ed in the Preamble of the ECN+ Directive, with the fact that [?] companies are obliged to answer factual questions and provide documents, which also corresponds to EU case law 58 .Czech legislation 59 meets these requirements and does not require further legislative changes.Czech courts also interpret the obligation to provide information in accordance with EU legal doctrine 60 .

Poland
Even before the Amendment Act came into force, the UOKiK President had the power to request necessary information and documents from undertakings (and associations of undertakings 61 ) 62 .
Similarly as it is in the Czech Republic, the decision as to what information is seen as necessary rested with the UOKiK President, and not the undertaking (association of undertakings) to whom the request was addressed 63 .The verifi cation of the scope of the requested information and documents in terms of their necessity might be left to the court in appeal proceedings against the decision imposing a fi ne for the failure to provide the requested information and documents (Modzelewska- power had not expressly stipulated that this obligation covered only information that was accessible to such undertakings or associations of undertakings, jurisprudence has underlined that the UOKiK President cannot request information and documents if there was no legal obligation to collect or disclose them by the entity to whom the request is made.In particular, the NCA could not have demanded the preparation of analytical studies on the basis of the requested documents and information 65 .The Amendment Act has introduced an almost entirely new wording of Article 50(1) of the ACCP, but unfortunately this has not made any signifi cant differences within the discussed scope 66 .Similarly as before the transposition of the ECN+ Directive, legal provisions in force now indicate that the request for information shall include, amongst other, the deadline for providing information, but it fails to stipulate any requirements as to the length of the time limit.It is indicated in literature that the time limit for providing information shall be appropriate and reasonable ( to require "all necessary information", without stating that this request should be proportionate 68 .
Whereas in the case of the requirement of the ECN+ Directive that the request for information shall not compel the addressees of the requests to admit an infringement of Articles 101 and 102 TFEU, the Amendment Act introduced a rule which guarantees the right to remain silent for natural persons if providing the requested information would endanger this person or their spouse, ascendants, descendants, siblings and relatives in the same line or degree, as well as persons in the relationship of adoption, custody or guardianship, as well as cohabiting person, under criminal liability 69 .Moreover it added the provision that the information and documents provided to the UOKiK President by a natural person cannot be used against the abovementioned persons in the enforcement proceedings conducted by this authority 70 .As a result, the guarantee that the request shall not compel its addressees to admit an infringement, have a very limited scope ( classifi ed information protected by a special law, and may not be required to be a witness if this would put himself or a person close to them at risk of prosecution for a criminal or administrative offense.Moreover, Czech Law on Offence Liability specifi cally regulates the interrogation of a party to the proceedings 77 , in a similar way as the Czech General Law on Administrative Law.
As mentioned, and in line with these EU requirements, Czech administrative law states that all kind of evidences may be used to prove or established factual conditions, and which are not obtained or carried out in violation of legal regulations 78 .As such, it is not problematic that the above-mentioned requirements of the ECN+ Directive are not part of the Czech draft.
In relation to evidence, the ECN+ Directive requires admissibility of evidence before NCAs 79 .
Basically, all types of proofs are admissible as evidence before NCAs, including documents, oral statements, electronic messages, recordings, and all other objects containing information, irrespective of their form and the medium on which the information is stored.Even records obtained secretly by natural/legal persons may be used as evidence according to the ENC+ Directive Preamble, which states that it is possible to use records secretly taken by legal or natural persons who are not public authorities 80 .Czech courts have already approved such evidence in the past 81 .Ultimately, the subsidiary use of general Czech doctrine on criminal law, which allows the use of audio and video recordings as evidence in criminal proceedings, is also not excluded (Zaoralová, 2017, p. 28).

Poland
The legal solution in force before 20 May 2023 empowered the UOKiK President to summon individual witnesses to appear for an interview 82 .However, the rules on conducing interviews were not fully convergent with the ECN+ Directive in terms of the safeguards concerning the right of defence.Unfortunately, the Amendment Act has not provided a satisfactory remedy in this context (Piszcz and Petr, 2023).

IV. NCAs' decision-making powers 1. Initial remarks
The ECN+ Directive requires that NCAs are equipped with decision-making powers in three areas: (1) fi nding and termination of infringements; (2) interim measures, and (3) commitments.

EU legal framework
Regarding the fi nding and termination of infringements, the ECN+ Directive obliges EU Member States to ensure that when NCAs fi nd an infringement of Article 101 or 102 TFEU, they may, by decision, require the undertakings and associations of undertakings concerned, to bring that infringement to an end, and to impose proportionate and necessary behavioural or structural remedies, if appropriate 83 .NCAs shall also be able to fi nd that an infringement of these prohibitions has been committed in the past 84 .The directive requires also for NCAs to be obliged to inform the Commission if they decide that there are no grounds to continue enforcement proceedings (of which the Commission was informed in accordance with Article 11(3) of Regulation 1/2003), and as a result close such enforcement proceedings 85 .

The Czech Republic
Member States shall ensure that, if their NCAs detect a competition law violation, they have the power to order the concerned undertaking to end the violation.As regards the possible methods of doing so stated in such a decision, this does not change the fact that NCAs can decide on infringements of EU competition law.However, NCAs cannot decide that a violation has not occurred 86 .Regarding the authorization of the Czech NCA to impose corrective measures, these, according to the ECN+ Directive, should take the form of not only behavioural but also structural remedies.The CCA anticipates remedial measures in general 87 , but does not mention their possible structural form, nor has it decided in the past to impose structural remedial measures (in matters related to prohibited agreements or to the abuse of dominance).Even though Czech literature (Kindl and Munková, 2018) does not rule out the possibility of using structural corrective measures within Czech law, this would be a fundamental intervention in the functioning of competition law, and should be amended in the draft.Unfortunately, the proposal does not do so, nor does it comment on this circumstance.
The Directive also requires that NCAs are able to establish that a breach of EU competition law has occurred in the past 88 .This most likely means that NCAs have the possibility to decide, even in negotiations that have already been terminated but are not time-barred, which Czech law of course allows.On the other hand, the Commission can also decide on actions that are already time-barred 89 .

Poland
The Polish legal solution in terms of fi nding and the termination of infringements was generally in line with the requirements of the ECN+ Directive.Even before the Amendment Act, the UOKiK President had the power to issue a decision determining a practice to be restricting competition, if he/she found an infringement of the prohibitions specifi ed in Articles 101 or 102 TFEU, or its national equivalents (i.e.Articles 6 or 9 ACCP) 90 .In cases when the practice concerned has not ceased before the decision is issued, the Polish NCA had to order such practice to be discontinued.
Such an order should have constituted a part of the decision deterring a practice as restricting 83 ECN+ Directive, Art 10(1). 84Ibidem.
85 ECN+ Directive, Art 10(2).The ECN+ Directive obliges EU Member States to empower their NCAs to order, by decision, the imposition of proportionate interim measures on undertakings and associations of undertakings.
Such possibility shall be granted at least in "urgent" cases, which pose the risk of serious and irreparable harm to competition, on the basis of a prima facie fi nding of an infringement of Article 101 or Article 102 TFEU.Interim measures shall apply either for a specifi ed time period, which may be renewed in so far as necessary and appropriate, or until the fi nal decision is taken.The imposition of interim measures shall be communicated to the European Competition Network 99 .
EU Member States shall also provide an expedited appeal procedure, which makes it possible to review the legality (in particular proportionality) of the imposed interim measures 100 .

The Czech Republic
The CCA is silent on the point of interim measures.Within the Czech legal system, there is a possibility of imposing an interim measure by administrative judiciary 101 , but rapid judicial review may not be guaranteed.In Czech law, neither the General Administrative Law 102 , nor the Administrative Procedure Code 103 provide the possibility of an accelerated review.It would thus be appropriate to deal with it within the draft.Unfortunately, the proposal does not do so.Conversely, in the past, preliminary measures were reviewed as a matter of priority in administrative judiciary 104 , but the 2011 amendment to the law removed this "acceleration" from the law.

Poland
Even before the Amendment Act, the UOKiK President was empowered to order, by decision, the imposition of interim measures.Such a decision might have been adopted if, in the course of antitrust proceedings, it has been rendered plausible that any further application of the alleged practice might have caused serious threats to competition that would be diffi cult to remedy later.
Prior to issuing such decision, the party concerned had no right to express its standpoint as to the evidence and materials gathered, or demands submitted 105 .Such a decision should have specifi ed the period for which it was binding, which could not gone beyond the time the decision was issued concluding the proceedings regarding the given case 106 .However, the specifi ed period could have been extended by way of another decision 107 .Regarding the duty of Member States to ensure that the legality of the imposed interim measures can be reviewed in expedited appeal procedures, the Polish solution -unlike the Czech one -stated that in the event that an appeal 99 ECN+ Directive, Art 11(1). of the Czech NCA the total number of proceedings related to commitments is relatively low (Petr   and Zorková, 2018).That could be caused by the different understanding of the institution of commitments in the Czech Republic and in EU, which has already been pointed out in Czech literature (Petr, 2019).
Differences in the Czech and EU legal regulation of commitments did not have to be a problem, because the Member States generally benefi t from procedural autonomy under EU law.Still, the EU model of commitments can be considered more effective than the Czech model (Ibid, p. 7).
However, the ECN+ Directive requires that the institution of commitments in national law corresponds to the same institution under Regulation 1/2003 117 .This is not suffi ciently taken into account in the Czech draft.
First of all, already in the past, Czech commentators came to the conclusion that for the proper transposition of the ECN+ Directive provisions on commitments, it would be necessary to delete a part of the CCA.The requirements has to be eliminated whereby the NCA has to verify whether, or not there had been no signifi cant distortion of competition, and that all participants always have to submit proposals jointly.As far as the decisional practice of the NCA is concerned, the authority should also stop tying commitments to the notifi cation of reservations and formalize the "market testing" of commitments (Petr, 2019).
Currently, the Czech draft still requires that in the case of multiple participants in competition law proceedings, there must be a proposal submitted jointly by all participants, which does not follow the EU requirements and which, in our opinion, practically excludes the possibility of commitments in the case of prohibited agreements as well.In addition, participants in the proceedings have to start behaving in accordance with the proposal of their commitments immediately after making the proposal, without knowing whether or not the NCA will actually accept their proposal or not 118 .
This might further reduce undertakings' motivation to propose commitments.
The other Czech draft condition is that commitments may be submitted in writing by all parties up to 15 days from passing on reservations which the ECN+ Directive does not require.Lastly, the Czech proposal does not mention market testing either, which could be seen as a shortcoming as well.

Poland
The Amendment Act has not introduced any changes to the rules governing commitments decisions.The UOKiK President is empowered to make, by decision, commitments offered by undertakings binding.Such decision can be adopted if, in the course of antitrust proceedings, it is rendered plausible that the prohibitions referred to in Articles 101 or 102 of the TFEU or in its national equivalents (i.e.Article 6 or 9 of the ACCP) have been infringed and the undertaking has agreed to take or cease certain actions aimed at ending such infringements or remedying the effects thereof.A commitment decision can be issued also in the case where the undertaking has ceased the infringement and agrees to remedy the effects of that infringement 119 .The UOKiK President may set a time limit for the fulfi lment of the commitments 120 .A commitment decision imposes upon its addressee an obligation to provide, within fi xed time limits, information regarding the stage of the implementation of the commitments 121 .Where a commitment decision is issued, the UOKiK President cannot impose a fi nancial penalty upon the given undertaking, nor the managing persons of it 122 .There are three situations where a commitment decision may be revoked.The decision may be revoked by the UOKiK President acting ex offi cio where: 1) the decision was issued on the basis of false, incomplete or misleading information or documents; or 2) the undertaking has not implemented the commitments or obligations 123 .Those two situations do not require the consent of the undertaking.In the third one, 3) a commitments decision may be revoked upon the undertaking's consent where circumstances which were a major consideration in the issuance of the decision have changed 124 .In the case where the decision is revoked, the UOKiK President shall rule on the merits of the case and is empowered to impose fi nancial penalties in accordance with general rules 125 .Those rules are supplemented by the guidelines regarding commitment decisions 126 where the UOKiK President presented some clarifi cations of the NCA's practise.In particular, the guideline states that a commitment decision will not, in principle, be issued in the cases of the most severe competition-restricting agreements, because of their negative impact on the functioning of the market and signifi cant economic benefi ts for the participants of such agreements 127 .Despite the non-binding nature of the guidelines, the UOKiK President declared therein that they will be applied since they refl ect the manner of application of those rules by this authority 128 .

V. Conclusions
Despite the fact that both -the Czech Republic and Poland -have failed to adopt proper legal acts aimed at ensuring the compliance of their national laws with the requirements of the ECN+ Directive on time, the analysis contained in this paper proves that the vast majority of the national requirements regarding the powers of their NCA are in line with this Directive (and in the case of Poland -were in fact also in line before the Amendment Act came into force).
This might arise from the fact that both countries joined the EU on 1 May 2004 and that they had modelled their national competition law enforcement systems on the system followed by the Commission.Nevertheless, the analysis has also revealed certain areas that required both of the national legislators to take action.
In terms of investigative powers, the rules in force in the Czech Republic and in Poland even before the ECN+ Directive granted their NCAs all investigative powers required by the EU.However, they were not fully in line with the requirements of the ECN+ Directive.In Poland, the main issues 120 ACCP, Art 12(2).
internetowy Kwartalnik Antymonopolowy i Regulacyjny 2023, nr 1(12) www.ikar.wz.uw.edu.plDOI: 10.7172/2299-5749.IKAR.1.12.1 in this regard were related to the powers in the course of an inspection and a search, power to request information, and to the safeguards with respect to the right of defence.In the Czech Republic, there was -and still is -a need to ensure that its NCA is able to obtain the necessary assistance of the police during an inspection.
In terms of decision-making powers, Polish law was generally in line with the requirements of the ECN+ Directive.In particular, even without the adoption of a legal act aimed solely at transposing the ECN+ Directive, the UOKiK President has had the three decision-making powers required by this directive.The only issue that needed to be amended within this scope was the adoption of However, it was recently noted that when it comes to the decision-making powers of the Czech NCA, in accordance with the requirements of the ECN+ Directive, legislative changes will be necessary regarding the accelerated review of decisions on interim measures, on commitments decisions, but also structural remedial measures (Petr, 2020).However, the draft has not provided many of the required changes.Hence, regarding the Czech Republic, it is fair to summarize that in all of the three mentioned areas related to decision-making powers, we have certain doubts about the full compatibility of the draft Czech law with the requirements of the ECN+ Directive.
In conclusion, it seems that the adoption of a legal act meant to transpose the ECN+ Directive into Polish law, has not dramatically changed the rules governing its NCA's powers.Overall, the Polish Amendment Act did not fulfi l its potential.Similarly, in the Czech Republic -one should not expect that the amendments which are going to be introduced in order to transpose the ECN+ Directive will signifi cantly change the powers of the Czech NCA.Nevertheless, in the case of the Czech Republic, it must be admitted that today's Proposal has noticeably "moved in a better direction" compared to the Original Proposal from 2020 and that the Czech NCA took into account a number of objections expressed by experts concerning its earlier version.Hopefully, taking into consideration the fact that the legislative process in the Czech Republic has not been completed yet, there is still a chance that the defi ciencies mentioned in this paper will be properly corrected.
s.r.o.fi nes in a total amount of 2.1 million CZK.In the second half of 2003, these companies acted in concert with each other to determine the selling prices of their bakery products.See: Decision of the Czech NCA No UOHS-R 20, 21, 22/2004-1249/2009/310/ADr of 2 February 2009.

a
legal provision ordering the UOKiK President to notify the Commission about the closure of the enforcement proceedings with respect to those proceedings that the NCA notifi ed the Commission about in accordance with Article 11(3) of Regulation 1/2003.The Amendment Act ensured the compliance with this requirement.By contrast, in terms of the decision-making powers, the Czech Republic needs to introduce changes regarding commitment decisions.The Czech draft deals with the issue of commitments and brings the Czech institution considerably closer to the EU requirements.
Amongst others in Niemietz and Colas Est where the ECtHR extended the right to privacy to legal persons (see Niemietz v Germany Application No 13710/88 [1992] 16 EHRR 97 (ECtHR), para 31 and Société Colas Est v France Application No 37971/97 [2003] ECHR-III (ECtHR), para 41) as well as in Delta Pekárny (see Delta Pekárny A.S. v. Czech Republic [2014] 93 ECtHR 9611).In literature based on the Delta Pekárny ruling it is underlined that EU Member States should also provide for effective measures to challenge the reasons and proportionality of inspections by competition authorities (in the form of judicial authorization or ex post facto) 31 . It seems, however, that even after almost twenty years of work, these attempts have not been successful.Still, the Czech Republic did already have the obligation to ensure police assistance, or an equivalent enforcement body, in relation to the investigations of the Commission 36 Delta Pekárny A.S. v. Czech Republic [2014] 93 ECtHR 9611. 37Regulation 1/2003, Art 20(6).internetowy Kwartalnik Antymonopolowy i Regulacyjny 2023, nr 1(12) www.ikar.wz.uw.edu.plDOI: 10.7172/2299-5749.IKAR.1.12.1 according to Regulation 1/2003 38 .However, this rule has not been explicitly implemented into Modzelewska de Raad, 2020, pp.58-59).The Amendment Act does not contain a necessary proposal to remedy that.Polish rules in force before the Amendment Act came into force, which govern inspections and searches, were not fully compliant with the ECN+ Directive.Primarily, there were two issues Those changes were introduced by the Act of 10 June 2014 amending the Act on Competition and Consumer Protection, hereinafter: ACCP, and the Act -Code of Civil Procedure [2014] Journal of Laws 945.