J. Sroczyński for WuW No. 12/1999 – The application of competition law to Catholic cemeteries

The Office of Competition and Consumer Protection (“OCCP”) has cleared the merger between Danone S.A., the French dairy products manufacturer active in the Polish market, and Bakoma S.A., the largest local yogurt producer. Despite the merger being limited to interlocking directorships (the shares of Bakoma S.A. acquired at the same by Danone S.A. empower to less than 25% of votes, i.e., the share sale transaction was not reportable under the Antimonopoly Law), it was cleared by the authorities only subject to various conditions. The OCCP has imposed the conditions in light of the fact that both entities’ market shares account jointly for over 60% of the Polish yogurt market.

The Polish Ombudsman has expressed an opinion that the conclusion of the bilateral agreement (the Concordat) between Poland and the Vatican does not exclude the application of the Antimonopoly Law to actions of menagers of Catholic cemeteries. Pursuant to the Concordat Catholic cemeteries may be independently owned and managed by the Roman Catholic Church. However, according to the Ombudsman’s opinion remains in connection with a complaint against the board of a Catholic cemetery and the OCCP, filed by a private undertaker who were denied access to provision of services on that cemetery. The OCCP’s position was that the Concordat excludes its authority over the matter, since the OCCP may not regulate the activities of the Roman Catholic Church.

The Antimonopoly Court has ruled that an establishment of a company by one undertaking together with one or more natural persons does not trigger the notification requirement, even though the undertaking in question exceeds the statutory thresholds foreseen in the Antimonopoly Law. The rationale of the ruling is that the Antimonopoly Law regulates mergers and acquisitions conducted between undertakings, so at least two undertakings should be involved, for a transaction to become reportable.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 12/1999.