J. Sroczyński for WuW No. 3/2013 – OCCP’s approval for PKN Orlen’s acquisition of an aviation fuel supplier

The Court of Competition and Consumer Protection (the “Court”) upheld the decision of the President of the Office of Competition and Consumer Protection (the “OCCP”), in which the OCCP prohibited in 2009 Gerda, a producer of anti-burglary doors, to fix resale prices with its 45 distributors. The Court confirmed also the fines, imposed in the total amount of approximately 300,000 euro. In the judgment, the Court underlined that an obligation to apply by Gerda’s distributors the producer’s price lists resulted in an elimination of inter-brand competition on the relevant market.

The OCCP prohibited two bid-rigging arrangements. The first has taken place between two suppliers of computer equipment, whereby one of the participants was intentionally withdrawing from the tenders, leaving the other, who offered a higher price, in the winning field. The second arrangement has taken place between two bakeries which supplied their products to the penitentiary, medical and educational institutions. The modus operandi was similar in this case. If both bakeries were the respective winner and runner-up in a given tender, the winning bakery would step out on some artificial reasons. Accordingly, the other bakery would be winning the tender despite offering a higher price.

The OCCP imposed fines on all undertakings involved in the bid-rigging practices.  

PKN Orlen, the largest Polish oil refinery, has secured the OCCP’s consent for an acquisition of all shares in Petrolot, a supplier of aircraft fuel to airports. Prior to the acquisition, Petrolot was co-controlled by PKN Orlen and the national air carrier, LOT Polish Airlines. The OCCP has established that PKN Orlen and Petrolot are linked only vertically, Petrolot selling JET fuels produced by PKN Orlen. Accordingly, no horizontal overlap occurs and the transaction was found not to meet the “significant impediment of competition” test (SIEC). Furthermore, the acquisition may yield benefits for competition. Since LOT Polish Airlines will not be anymore a shareholder of Petrolot, a risk of favorable treatment of this airline by Petrolot will be also eliminated.

The transaction was first notified in Brussels but the Commission has decided to transfer the file to the OCCP, upon PKN Orlen’s motion. 

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 3/2013.