J. Sroczyński for WuW No. 6/2013 – Two decisions by the President of the OCCP concerning cartels in the taxi and hospital markets

The President of the Office of Competition and Consumer Protection (the “OCCP”) issued two prohibition decisions in cartel cases on the local markets. The first decision was issued to seven taxi companies from the city of Grudziądz, which agreed to charge the same prices for their services (the initial fee, price per kilometer and per hour of waiting time). The cartel participants were fined in the total amount of 4.5 thousand euro. An eighth participant escaped the fine, as a result of leaving the cartel and submitting a leniency application to the OCCP.

The second decision pertains to a collusion by nine hospitals from the city of Lublin. The hospitals agreed to terminate contracts with non-public providers of specialized medical tests. Entities which perform those tests rely on contracts concluded with the National Health Fund (NFZ). Lublin’s hospitals assumed that in effect of the termination, NFZ will also terminate its contracts with test providers, thereby enabling the hospitals to directly accede the NFZ’s related funds. This practice was prohibited by the OCCP which insists that hospitals should observe the same competition rules as other undertakings. Interestingly, the Lublin’s hospitals were not fined for the collusion. The OCCP reasoned that financial sanctions would in the end adversely affect the situation of patients. The OCCP’s decision was not appealed, so it has become final.

PKP CARGO, a dominant incumbent on the Polish market of railway cargo transportation, refused to provide services to a local forwarding company conducting activities on three railway stations located near rock mines in the south-western region of Poland. As a result, the rock mines were forced to use PKP CARGO group companies as forwarders and the local competitor was eliminated from the market. PKP CARGO was fined 4 million euro for this abuse. The OCCP has taken into account the fact of PKP CARGO’s prior recidivism. PKP CARGO received two fines for restricting competition in 2004 and one in 2009.

The OCCP has opened the antimonopoly proceedings against three mobile telephony operators, Orange, Plus and T-Mobile. The OCCP alleged that the three operators may have collectively abused a dominant market position by adopting similar, higher rates for mutual connections with a competitive mobile network, Play. The allegations apply equally to an abuse of the EU competition rules. The case is precedential, since this is the first challenge of collective dominance undertaken by the OCCP.

Remondis and PSiUO, active on the local market for communal waste management in Gliwice, have decided to pay the combined fines of 12 thousand euro for notifying an establishment of a joint undertaking with a one-year delay. The OCCP imposed these fines in a decision which was not appealed and thus has become final.

The EU Commission has decided to refer to the OCCP a merger notification submitted by Auchan, at the request of the applicant. The transaction notified to the Commission pertains to an acquisition by Auchan of the Polish companies from the Real group. Auchan and Real operate in Poland in the food retail sector. The OCCP has accepted the referral to assess the market effects of this concentration. This is a third EU merger control referral to the Polish competition authority. Previously, the OCCP examined the concentrations by ITI and PKN Orlen, on the television and fuel markets, respectively.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 6/2013.