Appeal against the decision of the President of the ERO to the SOKiK

When can an appeal be lodged with the Court of Competition and Consumer Protection against a decision of the President of the Energy Regulatory Office?

Pursuant to Article 30(2) to (4) of the Act of 10 April 1997 – Energy Law, an appeal against a decision of the President of the Energy Regulatory Office may be lodged with the Court of Competition and Consumer Protection within 14 days of the date of service of the decision. Proceedings concerning an appeal against a decision of the President of the Energy Regulatory Office are conducted in accordance with the provisions of the Code of Civil Procedure relating to proceedings in matters of energy regulation (Part One, Book One, Title VII ‘Separate Proceedings’, Section IVc of the Code of Civil Procedure).

It should be noted that the provision of Article 30(2) of the Energy Law is supplemented by Article 47947 § 1 of the Code of Civil Procedure, which stipulates that an appeal against a decision of the President of the Energy Regulatory Office is lodged through the Office, which, on the one hand, enables the President of the Energy Regulatory Office to review the decision (Article 47948(2) of the Code of Civil Procedure), and on the other hand, allows the case files held by the President of the Energy Regulatory Office to be forwarded together with the appeal (Article 47948(1) of the Code of Civil Procedure).

Article 30 of the Act does not contain a list of decisions against which an appeal may be lodged with a common court – the Court of Competition and Consumer Protection. It must therefore be assumed that an appeal may be lodged against any decision of the President of the Energy Regulatory Office, and thus also against decisions issued in cases concerning the annulment of a decision (Article 156 of the Code of Administrative Procedure), in cases concerning the reopening of administrative proceedings (Article 145 et seq. of the Code of Administrative Procedure), as well as against decisions issued as a consequence of the revocation or amendment of a final decision in accordance with the rules laid down in Articles 154 and 155 of the Code of Administrative Procedure. Consequently, every decision of the President of the Energy Regulatory Office is subject to appeal to the Court of Competition and Consumer Protection, and not to challenge through other legal remedies.

Examples (of the very numerous) decisions issued by the President of the Energy Regulatory Office (URE) under the Energy Law include, amongst others, a decision on the temporary exemption of an energy undertaking forming part of a vertically integrated undertaking from specific obligations (Article 4h(3) of the Energy Law), a decision recognising a distribution system as a closed distribution system (Article 9da(1) of the Energy Law), and a decision determining the content of the agreement entrusting the performance of the duties of a gas transmission system operator (Article 9h(3e) of the Energy Law).

Who is a party to proceedings before the Court of Competition and Consumer Protection?

In proceedings concerning energy regulation, the parties are: the party which participated in the administrative proceedings and lodged an appeal with the Competition and Consumer Protection Court (as the claimant) and the President of the Energy Regulatory Office (as the defendant). Furthermore, an interested party has the status of a party; for example, in a case concerning the conclusion of a contract for connection to the electricity grid, the interested party will be the entity that applied for the conclusion of that contract, where the President of the Energy Regulatory Office has ruled on its conclusion and an appeal against the decision has been lodged by an energy undertaking (acting as the claimant).

What does the appeal procedure look like?

• SELF-REVIEW:

In the initial phase of proceedings conducted under the so-called self-review procedure, the President of the Energy Regulatory Office, who issued the decision, conducts proceedings involving a re-examination of the case and assesses whether the position taken in the case in question may be changed.

At this stage of the proceedings, the President of the Energy Regulatory Office must take a position on the content of the appeal and, on this basis, may determine that:

1. the appeal is justified in its entirety,
2. the party’s appeal may be upheld in full, even though it concerns only part of the decision,
3. the appeal is unfounded.

In the first and second cases, the President of the Energy Regulatory Office is competent to issue a new decision in which he or she will set aside or amend the contested decision, whereas in the latter case, he or she is obliged to refer the appeal to the Court of Competition and Consumer Protection. It is also important to note that where the President of the Energy Regulatory Office, pursuant to Article 47929§ 2 of the Code of Civil Procedure, considers the appeal to be well-founded, he may – without referring the case to the court – revoke or amend his decision in whole or in part without the party’s consent, of which he shall immediately notify the party by sending them a new decision, against which the party is also entitled to appeal.

An appeal against a decision of the President of the Energy Regulatory Office should include, inter alia, a request to set aside or amend the decision in whole or in part. The President of the Energy Regulatory Office is not authorised to assess the part of the decision not challenged by the party or to make any rulings in that regard.

Interestingly, under the self-review provided for in Article 47948 § 2 of the Code of Civil Procedure, the President of the Energy Regulatory Office or an employee of the Energy Regulatory Office who participated in the issuance of the decision challenged before the Court of Competition and Consumer Protection is not subject to exclusion from participating in the issuance of a decision to revoke or amend the decision, unlike under Article 24 § 1(5) of the Code of Administrative Procedure.

As already indicated above, where the President of the Energy Regulatory Office considers the appeal to be unfounded, he is obliged to forward the case file to the Court of Competition and Consumer Protection without delay, and the case is thus referred to the Court of Competition and Consumer Protection for adjudication.

• DECISIONS OF THE COURT OF COMPETITION AND CONSUMER PROTECTION

In the case of an appeal against a decision of the President of the Energy Regulatory Office, the Competition and Consumer Protection Court:

• dismisses the appeal if there are no grounds for granting it (Article 47953(1) of the Code of Civil Procedure),
• upholds the appeal and sets aside the contested decision or amends it in whole or in part and rules on the substance of the case (Article 47953(2) of the Code of Civil Procedure),
• dismisses the appeal if it was lodged after the deadline for lodging it, is inadmissible for other reasons, or if the deficiencies were not remedied within the prescribed time limit (Article 47947(2) of the Code of Civil Procedure),
• dismisses the proceedings, e.g. in the event of the effective withdrawal of an appeal against a decision of the President of the Energy Regulatory Office or in accordance with the rules set out in the Code of Civil Procedure.

It is also important to note that the SOKiK acts as a court of first instance; consequently, its judgment is subject to appeal in accordance with general rules. A cassation appeal to the Supreme Court against a judgment of the court of second instance (the Court of Appeal) in cases concerning energy regulation may be lodged regardless of the value of the subject matter of the appeal (Article 47967 § 2 of the Code of Civil Procedure).

Czarnecka Marzena, Energy Law, Energy Efficiency, Volume I. Commentary, 2023.

Resolution of the Supreme Court of 8 October 2014, ref. no. III SZP 2/14, OSNP 2015, No. 8, item 116).

Machnikowska Anna, Separate Proceedings. Civil Procedure System. Volume 6, 2022. e

Judgment of the Supreme Court of 11 April 2012, ref. no. III SK 33/11, published in OSNP 2013/9-10/120.

Muras Zdzisław, Swora Mariusz, Energy Law. Commentary. Volume II – Commentary on Articles 12–72, 2016.

Judgment of the Antimonopoly Court of 21 June 2000, ref. no. XVII Ame 58/99, published in LEX no. 55982.

Judgment of the Supreme Court – Labour, Social Insurance and Public Affairs Chamber of 14 February 2007, ref. no. III SK 19/06.

Judgment of the Supreme Administrative Court of 14 January 2015, ref. no. II OSK 1439/13.

Judgment of the Supreme Court of 17 January 2003, ref. no. I CK 214/02.

Muras Zdzisław, Swora Mariusz, Energy Law. Commentary. Volume II – Commentary on Articles 12–72, 2016.