J. Sroczyński for WuW No. 6/2021 – Ban on the concentration of media groups operating radio stations
The President of the Office of Competition and Consumer Protection (“OCCP”) prohibited the acquisition of Eurozet by Agora, arguing that the concentration would limit competition on the markets of radio advertising and broadcasting. Agora and Eurozet are the leading media groups and operate several radio stations. The two-phase proceedings which the OCCP conducted for over a year, included a market test, presentation of competition concerns, and a remedy proposal rejected by the OCCP. Two reasons were identified for the prohibition. The first was that in the national market, an oligopoly would be created between the two radio groups, as the potential new entity and current competitor RMF FM would have a combined 70% market share. The second, that in several local markets, the new entity would gain a dominant market position. The OCCP held that this situation would have marginalised the remaining radio broadcasters, especially in competing for radio advertising clients. The OCCP rejected remedies offered by Agora, claiming that their mitigating effect would be only minimal. Agora appealed the decision, alleging that the OCCP erred in its conclusions from the market analysis and relied on a concept of an oligopolistic market unknown in competition law. The OCCP’s ban was also seen as politically motivated, given the growing subordination of the media by the current Polish government.
The Polish ombudsman (the Commissioner for Human Rights) filed an appeal to the first instance court from the OCCP’s decision approving an acquisition by state-controlled oil group PKN Orlen of Polska Press, the editor of several dozen local and regional newspapers. The ombudsman argued that subjecting such high number of newspapers to indirect governmental control violates the principles of media pluralism and freedom of speech. Prior to filing the appeal, the Ombudsman requested the OCCP to provide access to the files of the concentration case but was refused for formal reasons. The Ombudsman expressed doubts as to the reliability of assessments made by the OCCP in the market analysis. The OCCP claims that the transaction was assessed only for effects on competition and could not be reviewed on other grounds.
The EU Commission referred to the OCCP an acquisition by state-controlled group oil PKN Orlen of PGNiG, a state-owned natural gas incumbent. The referral was requested by PKN Orlen, on the grounds that effects of the merger will occur primarily on the Polish market.
The OCCP has cleared two joint ventures established to operate windfarms in the Polish economic zone of the Baltic Sea. One of them is a common project of the state-controlled oil group PKN Orlen and the Canadian Northland, the other of the state energy group PGE and the Danish Ørsted Wind Power.
The OCCP, upon a referral from the EU Commission, has cleared the acquisition of the retail shops group Tesco Polska by Salling Group, operating Netto discount stores. The OCCP’s decision confirms that hipermarkets, supermarkets and discounts compete on local markets within 10-15 kilometers from a shop. Prior to the clearance, the OCCP issued a temporary decision allowing Salling Group to take over eight Tesco hipermarkets, out of which seven should be disposed to outside buyers and only one retained by Salling Group.
J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 6/2021.
