J. Sroczyński for WuW No. 6/2012 – Approval by the President of the OCCP for the takeover of the Polish Power Exchange by the Warsaw Stock Exchange

The President of the Office of Competition and Consumer Protection (the “OCCP”) has approved an acquisition of control over the Polish Power Exchange by the Warsaw Stock Exchange. The Polish Power Exchange operates on the market of wholesale transactions in electric energy, while the Warsaw Stock Exchange organizes dealing in financial instruments. The Warsaw Stock Exchange already invested in an internet platform supporting deals on the power wholesale market, called Poee Energy Market. The OCCP, approving the notification, has taken into account the need to develop the stock exchange model of trading in electric energy. Currently, a majority of wholesale transactions are concluded in bilateral contracts, many of them between members of the same energy groups. Thus, the planned acquisition of the Warsaw Stock Exchange should stimulate competition on the energy market. The OCCP defined the relevant market of the transaction as the market for services facilitating the wholesale trade in electric energy.

An acquisition of Polfa Warsaw by Polpharma has been cleared by the OCCP, on the condition that Polpharma sells off all rights to three medicaments. The OCCP assessed the parties’ post-merger market position as a monopoly in the case of bacterial eye infection drugs, and as dominant in the case of anticoagulant cardiac drugs and fluoroquinolone antibiotics. Some brands of the above medicaments enjoy high consumer recognition, while the potential competition entry barriers are high. The OCCP expressed concerns related to possible increase of prices of those medicaments and obligated Polpharma to sell off the pertinent rights to them within 18 months, to a buyer approved by the OCCP. Polpharma was also obligated to transfer to the buyer all documentation and know-how related to the drugs. Finally, the OCCP imposed an obligation to maintain, until the selloff date, the market share in the drugs at the level of 70% and to keep current expenses on advertising and promotion of the drugs in proportion to such expenses in 2010 and 2011. The OCCP’s decision is the fifteenth conditional merger clearance since 2004 and the first in 2012.  

The OCCP prohibited resale price maintenance practices in the internet sales of musical instruments. The restrictions were imposed by Roland Polska, a distributor of Japanese instrument brands Roland, Boss, Rodgers and Cakewalk. Roland Polska was fixing with its resellers the minimum prices of those products. Consequently, customers making online purchases were deprived from the benefit of obtaining cheaper products. The OCCP imposed a fine on Roland Polska in excess of 50 thousand euro. The OCCP’s prohibiting decision is the first dealing with relations between the internet and brick-and-mortar sales.

The OCCP issued two decisions prohibiting abuse of dominance on the energy sales market, one to RWE-Polska and another to Energa Operator. In both cases, the incumbents were impeding the process of change by the customer of the energy supplier, which was qualified by the OCCP as a violation of the so-called TPA rule (Third Party Access). RWE Polska was fined in the amount of over 1.5 million euro, while Energa Operator received a fine in excess of 60 thousand euro.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 6/2012.