J. Sroczyński for WuW No. 12/2016 – The President of the OCCP has refused to approve the Nord Stream 2 joint venture

Nord Stream 2 is a project of construction and operation of a gas pipeline, developed by Gazprom, Uniper, Engie, OMV, Shell, and Wintershall. Its purpose is to supply Russian gas to the European Union, in parallel to the existing Nord Stream 1 pipeline. The companies engaged in Nord Stream 2 notified to the President of the Office of Competition and Competition Protection (“OCCP”) their intention to create the pipeline joint venture entity. The OCCP conducted a market test which confirmed the authority’s doubts as to the negative effects of the planned transaction for competition in Poland. Following an investigation which lasted nearly 8 months, the OCCP issued competition concerns as to the notified concentration. The OCCP claimed that the joint venture would further increase Gazprom’s negotiating power vis-à-vis its Polish customers, given that currently the position of Gazprom on the Polish gas market is dominant. In result of those concerns, the applicants have decided to withdraw their notification, which means that the Nord Stream 2 joint venture cannot be created.   

The OCCP has cleared the acquisition by a US company Diebold of Wincor Nixdorf, a German competitor on the market of ATMs (bancomats). The transaction was approved in the second phase, following a market test during which the OCCP sent requests for information to almost 50 entities, including competitors and customers, such as banks. The OCCP analysed the demand side of the relevant market which is highly concentrated and may exerts significant competitive pressure. The OCCP also took into account the fact that ATM suppliers are mainly chosen in tender procedures, so their market shares fluctuate over time. The presence of a strong competitor, NCR, was perceived as important from the point of view of future competition. In light of these considerations, the OCCP has unconditionally cleared the transaction, despite an excess over 40 percent of the combined market shares in some relevant markets.    

The Supreme Court has overturned the ruling of the Court of Appeals, in which the court did not find illegal a removal of a document to the “deleted” folder. The removal took place during an inspection of the OCCP. A board member of the inspected company, Inco-Veritas, placed the “suspicious” document in the “deleted” folder of his computer, without however deleting it. When his action was discovered by the officials, Inco-Veritas was fined 0.5 million euro for a lack of cooperation with the OCCP. The first and second instance courts rejected the arguments of the OCCP, pointing out to the fact that the document was not removed permanently and could still be accessed in the “deleted” folder. In addition, the officials have received paper print-out of the document. However, the Supreme Court qualified the behaviour of the manager as obstructive, ruling that the undertaking is obliged to actively cooperate with the OCCP during an inspection. The fact that the document was not permanently deleted was meaningless, since the manager should provide the document to the officials. The presentation of a paper version did not exculpate Inco-Veritas, since the officials were unable to compare it with the electronic version. The case should be assessed again by the first instance court. 

BP Europa was fined 5 thousand euro by the OCCP for a lack of notification of a long-term lease of a petrol station from a third party. The OCCP qualified this kind of transaction as a notifiable concentration. The Court of Competition and Consumer Protection, in the judgment issued in result of an appeal by BP Europa, confirmed the OCCP’s decision. The Court ruled that an acquisition of property rights of another undertaking constitutes a concentration, regardless whether such rights priorly existed or were created in the transaction concluded between undertakings.

The OCCP prohibited bid-rigging practices of members of the association of medical clinics active in the field of sterility treatment. The association was setting prices for offers submitted by the clinics within a governmentally subsidized program of counteracting sterility. Price recommendations were made during meetings and in e-mails. The OCCP has found that the collusion could result in the increase of financing of the program by the Ministry of Health. The fine imposed on the association was 3 thousand euro.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 12/2016.