J. Sroczyński for WuW No. 6/2016 – A fine imposed on PGNiG for failing to comply with a commitment decision issued by the President of the OCCP

The gas incumbent PGNiG has been fined almost 2.5 million euro for not complying with the commitment decision issued in 2013 by the President of the Office of Competition and Consumer Protection (“OCCP”). The OCCP objected against the restrictions imposed by PGNiG upon its customers, who were prohibited to decrease the quantities of gas ordered for subsequent purchase periods. Following a market test performed by the OCCP, PGNiG committed to eliminate the questioned provisions from its purchase contracts. In fact, they were only replaced by other provisions having a similar “freezing” effect. The OCCP declared that PGNiG did not perform the commitment decision and imposed a fine in the amount of 5000 euro for each of the 490 days of the delay.

ITC, a distributor of Emmaljunga children prams, was prohibiting its retailors from conducting online sales, through contractual restrictions. The OCCP opened an investigation during which ITC committed to remove the restrictions from its contracts and to conclude annexes explicitly allowing distributors to sell prams also online. By obtaining a commitment decision, ITC avoided fines for this violation.

The OCCP was conducting a preliminary investigation of the conditions applied in contracts between online booking operators and hotels. The OCCP has contested the “broad” most favored clauses which guaranteed the operators equal or not less favorable terms of pricing and accessibility, compared to all remaining online and offline sales channels. On the other hand, the OCCP accepted the “narrow” most favored clauses, pursuant to which the operators’ conditions should be not less favorable than those offered on a hotel’s own website. The OCCP was concerned that the “broad” clauses hamper price reductions for customers, even if a hotel was not fully booked. Four operators (Booking.com, Expedia.com, Hotele.pl and HRS.pl) have committed to apply the “narrow” most favored clauses only. Some others have already resigned from the “broad” clauses. In effect, the OCCP closed the investigation without imposing fines. The OCCP was cooperating on this case with the Commission and other national authorities (including in France, Italy and Sweden), which insisted on similar changes in their respective jurisdictions.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 6/2016.