J. Sroczyński for WuW No. 9/2017 – The President of the OCCP imposes the largest ever nominal fine for failure to notify a merger

The President of the Office of Competition and Consumer Protection (“OCCP”) has cleared the acquisition of Bank Pekao SA (“Pekao”) by PZU, the largest player on the Polish insurance market. In result of this transaction, Pekao will return to the Polish state, since PZU is state-controlled. Pekao will be acquired from the Italian UniCredit, which had purchased it from the Polish state in a privatization several years ago. The analysis of the OCCP did not disclose any threats to competition. On the broadly defined banking services market the shares will remain below 20%. The OCCP also examined the risk of foreclosure to the market of “bankassurance” services offered by PZU. Since insurance services are usually accessory to banking services, customers do not focus on them. Competition will thus not be harmed, so the transaction was unconditionally approved by the OCCP.

Three companies, Enigma, Enamor and Koncept, were accused by the OCCP of bid-rigging in a tender for cryptographic devices, organised by the Police. The OCCP found evidence of the collusion during a dawn raid. The bidders were exchanging e-mails agreeing to submit “courtesy offers”, enabling one of the colluding companies to win the tender. Subsequently, the winner would sub-contract parts of the tender to the other two companies. All three bidders also agreed on an exclusion of a fourth, independent participant, through pricing manipulation aimed to allege that the competitive offer was exorbitantly low. The proceeding opened by the OCCP will continue and lead to an administrative decision.

The OCCP imposed of fine of 520,000 PLN (ca. 125,000 euro) on Bac-Pol, for a lack of notification of the acquisition of competitor’s assets. The buyer and seller were both active on the regional FMCG retail markets. Although the acquisition was not formalised in an agreement, it involved the takeover of key contracts, employees, goods, and goodwill. The OCCP has found that the omission of Bac-Pol was intentional and imposed the largest ever nominal fine for a lack of merger notification. 

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 9/2017.