J. Sroczyński for WuW No. 3/2019 – An overview of the activities of the President of the Office of Competition and Consumer Protection

The President of the Office of Competition and Consumer Protection (“OCCP”) initiated proceedings against Brother Central and Eastern Europe, a distributor of Brother printers. The OCCP was informed by an anonymous signalist that Brother applies minimum resale price maintenance practices in its distribution network. Brother apparently only suggested retail prices but in practice was monitoring shops and, if the actual resale prices were lower than suggested by Brother, the shop was facing rebate restrictions. Shops were also obliged to keep Brother informed of other shops’ pricing, to eliminate price reductions below the suggested level.

The OCCP initiated proceedings against eight undertakings, engaged in bid-rigging of food supplies to prisons and hospitals. In all cases, the collusion consisted in the pre-arranged withdrawal of a winner from the tender, to open way for a next, more expensive offer to be chosen.

The OCCP cleared an acquisition of Pini Polonia by Smithfields, following a market test. Both undertakings are active on the market for production and processing of meat. The acquisition was initially notified to the EU Commission, which referred the case to the Polish authority. The OCCP has found that effective competition on the relevant market will prevent the merged entity from offering breeders unfairly low prices for livestock, especially that purchase prices are transparent on the Polish market.

The OCCP opened an investigation against Yamaha Music Europe, under charge of imposing minimum resale prices upon its Polish online distributors of musical instruments. The prohibited practices might have lasted for several years. Yamaha was monitoring online prices and applied retaliatory measures in case the prices were too low. Such measures consisted in the cutting of rebates or supplies or restricting access to events organised with musicians.

The OCCP issued competition concerns in the merger proceedings related to a takeover of ACP Europe and Eurocylinder by Air Products. The activities of these undertakings overlap on the markets for carbon dioxide and dry ice. The OCCP has found that the merger may lead to a limitation of competition, primarily on the market for liquid carbon dioxide. The new entity would control over half of the market, being twice as large as its immediate competitor. Given the additional effect of new investments planned by Air Products in the coming years, the OCCP expressed concerns about possible price increase of liquid carbon dioxide.

The OCCP accepted commitments of PKP PLK, the near-monopolistic operator of Polish railway tracks, to remove from its procedures the onerous terms of delivery of railway products and technologies, such as rails or sleepers. PKP PLK applied an arbitrary system of quality control discouraging suppliers from raising objections or claims, which could lead to a market foreclosure lasting several years. The OCCP agreed that PKP PLK ceases this practice and issued a commitment decision which, by operation of law, may not contain any fines.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 3/2019.