J. Sroczyński for WuW No. 3/2002 – Consent of the President of the OCCP to the merger of the Cyfra + and Wizja TV satellite platforms

The President of the Office of Competition and Consumer Protection (“OCCP”) has consented to a merger of two satellite platforms, Cyfra + (operated by Canal+) and Wizja TV (operated by UPC). The permission was granted unconditionally, following a long and detailed investigation. The OCCP examined, among other things, several complaints made by providers of television programs, anxious that their presence on the combined platform may be threatened. The OCCP did not share the same doubts but ruled that the merger may be beneficial for consumers and is likely to eliminate significant losses of both platforms, related to the lack of scale economies. On the other hand, the OCCP defined the relevant market narrowly as the market for satellite television services, which may open up various possibilities to investigate the operations of the future combined platform for conformity with the rules of competition.

The OCCP has cleared the acquisition of a controlling interest in Bester S.A., a Polish manufacturer of welding products, by a U.S. corporation, Lincoln Electric, a major world supplier of various welding equipment and related products. A particularly interesting approach of the OOCP was demonstrated in the reasoning of the pertinent, positive decision. The OCCP defined the relevant geographic market not only as the Polish market, but as the European market. Such broad approach to the geographic market definition is possible as a result of the entry into force of the new Antimonopoly Law on April 1, 2001.

The OCCP has issued an opinion regarding its interpretation of the market share exemption related to the obligation to notify concentrations between undertakings. Pursuant to the Antimonopoly Law, a concentration does not need to be notified if the combined market share of the undertakings concerned is not higher than 20%. The OCCP explained that the notion of the market for purposes of the exemption should be understood broadly. This, in turn, leads to the conclusion that an excess of 20% on practically any market, and not only on the relevant or affected markets, deprives the undertakings concerned to benefit from the discussed exemption.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 3/2002.