J. Sroczyński for WuW No. 3/2012 – Decisions of the President of the OCCP concerning concentrations of undertakings

The President of the Office of Competition and Consumer Protection (the “OCCP”) issued a conditional clearance decision to Fresenius Medical Care, in relation to its planned acquisition of rival Eurodial. Both companies operate on the market for dialyses services, necessary for persons with renal diseases. The OCCP has established that the concentration would lead to a significant impediment of effective competition in the north-western region of Poland. The relevant market is characterized by high entry barriers and the post-concentration combined market share in that region would be several times higher than that of other competitors. In consequence, the OCCP imposed a condition obligating Fresenius to divest four dialyses stations, located in four towns. One of the divested stations already belongs to Fresenius, while the other three are the acquired Eurodial stations. The divestments must be made until end of 2012, only to an entity which will continue to operate the divested dialyses stations.

Another conditional decision was issued to Eurocash, a company active on the FMCG wholesale market. Eurocash notified an intention to acquire eight companies from competitor Emperia Holding. According to an analysis of the relevant market conducted by the OCCP, the planned transaction would impede competition on 20 local markets. The OCCP obtained the necessary market data from 800 undertakings subject to an investigation. Consequently, the OCCP imposed a condition upon Eurocash, consisting in a divestment of 12 wholesale units within 12 months following completion of the acquisition.

The Court of Competition and Consumer Protection (the “CCCP”) confirmed the decision of the OCCP, in which a fine of nearly 125,000 euro was imposed on Carrefour for a lack of fulfillment of the divestment condition, accepted by Carrefour in 2007 in connection with an acquisition of competitor Ahold, active on the FMCG retail market. Carrefour obligated itself to divest nine specified shops until end of 2008 but a sale of two shops followed with a several week delay. This was qualified by the OCCP as a negligence to perform a conditional merger decision and was a reason for the fine. Carrefour may appeal the unfavorable ruling of the CCCP to the Court of Appeals.

The OCCP issued a prohibiting decision to two companies active in the field of installation and conservation of road signs. Zebra Max and Zebra 2 are owned by, respectively, a husband and wife who remain in separation. Both companies participate in public tenders organized by the local road authorities. The OCCP has found that the spouses were coordinating the conditions of tenders for road works. If both bidding companies submitted the best offers, then the winner spouse would step out on formal grounds, leaving the bid for the more expensive offer of the runner-up spouse. In this manner, the spouses managed to affect results of 19 public tenders. Fines imposed on both companies for the cartel activities amount to 40,000 euro.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 3/2012.