J. Sroczyński for WuW No. 6/2019 – Merger of companies selling liquid carbon dioxide approved by the President of the OCCP

The President of the Office of Competition and Consumer Protection (“OCCP”) fined 20 thousand euro a bus company PKS Pila for sharing the local transportation market with rival Rafbus. Interestingly, Rafbus first ineffectively accused PKS Pila of abusing the dominant market position. When the OCCP was considering the complaint, it found that both companies were coordinating their activities in the years 2015-2017. PKS Pila and Rafbus were agreeing which local bus routes should not be serviced by the respective company. The OCCP ascribed the leading role in the prohibited arrangement to PKS Pila. Rafbus avoided a fine because it voluntarily, although unconsciously, informed the OCCP about the collusion.  

AirProducts & Chemicals (APC), a leading player on the Polish market for technical gases, obtained a consent of the OCCP to acquire ACP Europe and Eurocylinder, which both sell liquid carbon dioxide to breweries, producers of beverages and frozen food, and entities from the Horeca sector. Following the transaction, APC would control over half of the Polish market for liquid carbon dioxide and obtain large capacities for further growth. The immediate next competitor is significantly smaller than APC. For these reasons, the OCCP imposed several remedies to protect competition on the relevant market. APC should divest production assets enabling an independent buyer to produce liquid carbon dioxide in quantities not smaller than 76,650 tons. The OCCP may release APC from this obligation if an independent undertaking would start the construction in Poland of a new installation enabling to produce 153,000 tons of liquid carbon dioxide per year. APC should also propose its Polish wholesalers to prolong supply contracts and is obliged not to refuse the sale of liquid carbon dioxide without an objective justification. During the term of the remedies, APC will also not charge its wholesalers prices higher than a maximum price, established according to a special formula. The OCCP was considering the notified transaction for one year within a 2-phase proceeding.

The OCCP presented allegations of an anticompetitive collusion to Veolia and PGNiG, two heating companies from the Warsaw area and to their respective managers. The OCCP claims that both companies divided the local heating market. Veolia had planned to built a new heating plant but abandoned this plan, concentrating on the network transmission activities only. In turn, PGNiG decided to concentrate on the production of heat and intended to cease its selling activities to end users. The OCCP emphasised that these decisions were adopted commonly by both companies and were not a result of independent business calculations. For this reason, the OCCP qualified the behaviour of Veolia and PGNiG as a prohibited collusion.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 6/2019.