J. Sroczyński for WuW No. 6/2018 – Fine imposed on an Italian company operating in the Polish certification market for unlawful collusion

The President of the Office of Competition and Consumer Protection (“OCCP”) fined DOM Polska for delaying response to a request for information in the merger control proceedings on the door opening market. DOM Polska was requested to provide certain information about the planned acquisition of LOB by ASSA ABLOY, which both are competitors on the relevant market. However, the response was delayed by more than 60 days, which prolonged the market analysis and impeded an earlier closing of the proceedings by the OCCP. The fine imposed on DOM Polska was 6 thousand euro, while the maximum fine for this kind of violation can amount to even 50 million euro.

The OCCP imposed a fine of 100 thousand euro on IMQ, an Italian company active on Polish the market for certification, for a collusion with rival Dekra. The collusion began once two local managers who had worked together in the past, met each other at a marketplace in the city of Cracow. From an initial “small talk”, this incidental meeting resulted in an arrangement to last several years, whereby both managers were coordinating their respective offers submitted to entities purchasing certification services. The OCCP was faced with an uncommon dilemma how to assess the leniency motions which were filed both by IMQ and Dekra, given that each company was pointing out to the other as the initiator of the collusion. Under Polish law, leniency can be granted to a non-initiator only. When it has clearly become impossible that this crucial issue cannot be explained in the course of the proceedings despite numerous hearings and confrontations, the OCCP finally decided to rely on the principle of criminal law, according to which all unclear circumstances should be interpreted in favour of the party (in dubio pro reo). As a result, Dekra as the first applicant was granted full immunity, while the fine imposed on IMQ was decreased by 50 percent.

The OCCP approved a takeover of Grupa Silikaty by H+H, following an extensive market test. Both companies produce wall building blocks, respectively from silicates and ready-mix. The OCCP was assessing whether both products are substitutes and the effect of the merger on the regional markets of 200 kilometres from the production plants. The test has proved that both types of blocks are not direct substitutes and there would not be any significant anticompetitive effect on those markets. It can be noted that in 2015, Xella Polska has withdrawn a merger notification when the OCCP raised competition concerns in relation to its attempted takeover of Grupa Silikaty.

J. Sroczyński, Wirtschaft und Wettbewerb. Developments in national competition law, No. 6/2018.