J. Sroczyński for WuW No. 12/2020 – New powers of the President of the OCCP regarding the scrutiny of strategic investments
The President of the Office of Competition and Consumer Protection (“OCCP”) has gained new competences in the area of control of strategic investments. Investors from outside of the EU, EEA or OECD member states will be obligated to notify acquisitions of Polish public companies and companies from selected public interest sectors, such as energy, telecoms, pharma, food processing, military technology, or software for basic utility services. The target turnover threshold is 10 million euro obtained locally in any of the last two years. The proceedings may be conducted in two phases, lasting 30 or 120 days, respectively. If a merger notification would be filed in parallel with the investment control filing, the same case handler at the OCCP will be responsible for both filings. Sanctions for a lack of notification involve financial fines up to 50 million PLN but also nullity of transactions and criminal penalties up to 5 years imprisonment. The official justification for the new regulations is to create a barrier against cheap acquisitions of strategic Polish companies during the COVID-19 pandemics, especially by Far East investors.
The OCCP imposed fines of 40,000 euro on several companies participating in tenders for school bus services organized by local municipalities. The bidders adopted a scheme whereby the winner would withdraw or nullify its offer for formal reasons, for the purpose that an immediate, more expensive offer would be accepted.
The OCCP opened investigation against several undertakings performing forestry services, under charges of colluding in tenders organised by the state forest administration. The bidders arranged a withdrawal of the winning offer to enable acceptance of an immediate, more expensive offer.
The OCCP fined six companies 4 million euro in total for bid-rigging on the market of wooden railroad sleepers. Two leaders of the collusion agreed on a scheme of participation in tenders organized by Polish Railways, whereby they would share the contracts between themselves and the other companies. They also agreed on each other’s quotes submitted in the tenders.
The OCCP initiated preliminary proceedings against AMS and Ströer Polska, in connection with their suspected division of the market of outdoor advertising in the city of Warsaw. Both companies formed a consortium in the tender organised by the Warsaw municipality for advertising activities on bus and tram shelters and in the Warsaw Metro. Currently, AMS manages advertising on bus and tram stops, while Ströer Polska is active only in the Warsaw Metro. In addition to checking whether this situation may be the result of a collusion, the OCCP intends to verify the effects of so-called landscape resolution adopted by the Warsaw City Council, which could potentially result in the privileged status of both companies.
The OCCP fined two companies from the animal feeds sector a total of 4 million euro, for dividing the markets of milk replacers and mineral-vitamin mixtures. The division took form of an arrangement not to supply each other’s customers.
AmeriGas Polska was fined 170,000 euro for not notifying a takeover of control of Center of Gas Distribution, a company active on the gas market. The concentration took form of a pledge on the target’s shares which enabled AmeriGas Polska to exercise decisive influence on the management decisions.
The OCCP fined Gazprom 50 million euro for a failure to cooperate in the proceedings related to a lack of notification of a joint venture established with five other energy companies for the purpose of construction of the Nord Stream 2 gas pipeline.
Linde Gaz Polska was fined 30,000 euro for a lack of timely reply to the OCCP in the market test performed in connection with a merger notification on the market for liquid carbon dioxide. Linde Gaz Polska delayed its reply by two months.
J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 12/2020.
