J. Sroczyński for WuW No. 12/2015 – Coal producer Kompania Węglowa cleared by the President of the OCCP of allegations of breaching the Antimonopoly Law

The coal producer Kompania Węglowa has been released by the President of the Office of Competition and Consumer Protection (“OCCP”) from allegations to violate the Antimonopoly Law. The complaint was filed by a rival Bogdanka which claimed that Kompania Węglowa abused its dominant position in the form of predatory pricing. Bogdanka alleged that Kompania Węglowa was selling coal at prices below production costs and covering this loss by the means obtained from the illegal state aid. The OCCP rebutted these allegations following a market research. The OCCP found that Kompania Węglowa cannot be held dominant, as the relevant geographic market was in this case not the Polish but the EU market. On such defined market, Kompania Węglowa did not exceed 40% which is a presumption of dominance under Polish Antimonopoly Law. In addition, the OCCP qualified the prices charged by the Kompania Węglowa not as predatory but as being adapted to the current market circumstances. The OCCP held that the pricing strategy introduced as a protection against the crisis on the coal market cannot be qualified as predatory.

The OCCP filed an appeal from the judgment of the Court of Competition and Consumer Protection (“CCCP”), in which the CCCP annulled the decision prohibiting an arrangement between the four largest mobile telephony operators, i.e., Polkomtel, T-Mobile, Orange and P-4. The OCCP found that the four operators had agreed their behavior vis-à-vis a local player Info-TV-FM and were exchanging sensitive information. The four operators formed a consortium which was competing with Info-TV-FM for a reservation of the frequency destined for television programs in mobile telephones. When Info-TV-FM won the tender, all four have agreed common actions against the winner. However, the CCCP held that the OCCP had first place approved a joint venture between the four operators, which was established for the purpose of a common participation in the frequency tender, so their actions were the consequence of that approval. The OCCP did not agree with the CCCP’s interpretation of the anticompetitive object of the behavior within and outside of the joint venture, so it has decided to bring the case to the Court of Appeals.

The OCCP will present statements of objections in proceedings concerning anticompetitive arrangements, violation of collective consumer interests and imposition of fines. Statements with detailed justification of allegations will be presented to parties once all evidence has been collected by the OCCP. Parties will then have the possibility to provide comments regarding the allegations and evidence, prior to issuance of the decision. The OCCP has introduced this new procedure as part of its transparency program, for the purpose to increase the standards of formal justice.

Since the introduction of a two-phase merger control procedure as of January 18, 2015, the OCCP has decided to move six notifications to the second phase. These cases concern the markets for commercial malls, repairs of rolling stock, hosting and cloud computing, animal feeding stuffs, wall building materials, natural aggregates and cement. The OCCP can open a second phase in complicated matters, where competition concerns arise or if a case requires market analyses. The first phase lasts one month, while in the second phase the review period is extended for additional four months. However, these deadlines can be extended by the days lapsing during the exchange of correspondence between the OCCP and the applicant.  

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 12/2015.