J. Sroczyński for WuW No. 6/1999 – Proceedings against TVP and change of the decision prohibiting the merger

New amendments of the Antimonopoly Law have entered into force as of January 2, 1999. The main changes which concern the merger regulation include the following: (i) the 10% share acquisition threshold was eliminated (only the thresholds of 25%, 33% and 50% have remained); (ii) the turnover threshold was increased from EURO 5 million to EURO 25 million, and the asset acquisition threshold from EURO 2 million to EURO 5 million; (iii) transformations of undertakings are no longer subject to an antimonopoly clearance, and (iv) the statute of limitation for non compliance with the obligation to file pre-merger notifications was defined as five years calculated from the end of the calendar year in which a notification was to be filed.

The Office of Competition and Consumer Protection (“OCCP”) initiated proceedings against TVP, the Polish public television, and Polsat, the largest private television operator. Both were accused by Wizja TV, an operator of the digital television platform, of committing monopolistic practices consisting in a refusal to advertise Wizja TV’s platform in their respective programs. TVP and Polsat, together with Canal+ and other partners, are engaged in a joint venture offering the digital platform services. The antimonopoly authorities will thus have to rule whether an undertaking may request that its direct competitor is forced to advertise that undertaking’s services.

The Antymonopoly Court amanded the decision of the OCCP, prohibiting a merger between two undertakings operating on the ready-mix market in the Central-Eastern Poland. The Antimonopoly Court held that the OCCP over-estimated the market power of both firms following the merger, The geographical market was defined too narrowly, even though it should be defined as a regional market due to limited transportation possibilities of ready-mix. The Antimonopoly Court cleared the merger, indicating that neither party is likely to obtain a dominant market position following the intended transaction. The OCCP disagreed with the judgment of the Antimonopoly Court and filed an appeal to the Supreme Court. The appeal is now pending.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 6/1999.