COMPARATIVE GUIDE
7 January 2025

Merger Control Comparative Guide

Merger Control Comparative Guide for the jurisdiction of Poland, check out our comparative guides section to compare across multiple countries
Poland Antitrust/Competition Law

1 Legal and enforcement framework

1.1 Which legislative and regulatory provisions govern merger control in your jurisdiction?

The basic act regulating merger control in Poland is the Act of 16 February 2007 on Competition and Consumer Protection. Other major laws on this issue include:

  • the Regulation of the Council of Ministers of 23 December 2014 concerning the notification of the intention of concentration of undertakings (establishing, among other things, the official filing form); and
  • the Regulation of the Council of Ministers of 23 December 2014 concerning the method of calculation of the turnover of undertakings participating in the concentration.

Although not legally binding, there is another regulatory instrument worth mentioning because of its considerable practical significance: the Guidelines on the Criteria and Procedure of Notifying the Intention of Concentration to the Office for Competition and Consumer Protection, issued by the Polish competition authority, the Office for Competition and Consumer Protection (OCCP). The aim of the guidelines is to help entrepreneurs assess how the OCCP generally understands the procedural aspects of the Act on Competition and Consumer Protection.

Additionally, the OCCP has published Clarifications Concerning the Assessment by the OCCP of Notified Concentrations on its website. The clarifications provide a discussion and explanation of the substantive aspects that are taken into account within the framework of the assessment of concentrations carried out by the OCCP.

1.2 Do any special regimes apply in specific sectors (eg, national security, essential public services)?

There are no special rules with respect to foreign investment; however, there are special rules for financial institutions when it comes to the calculation of turnover for threshold purposes. Moreover, according to other special legislation, transactions in sectors such as banking may require specific approval from regulatory bodies other than the OCCP.

1.3 Which body is responsible for enforcing the merger control regime? What powers does it have?

In Poland, the OCCP is the sole authority responsible for the enforcement of competition rules, including the merger control regime.

2 Definitions and scope of application

2.1 What types of transactions are subject to the merger control regime?

The following types of transactions are subject to the notification obligation:

  • the merger of two or more independent undertakings;
  • the acquisition by one or more undertakings of direct or indirect control over one or more undertakings, whether by acquisition of stocks, shares or other securities, or otherwise;
  • the creation of one joint undertaking by several undertakings; and
  • the acquisition by an undertaking of part of another undertaking's property, if the turnover generated by the assets in any of the two financial years preceding the notification exceeded the equivalent of €10 million in the Polish territory.

2.2 How is 'control' defined in the applicable laws and regulations?

The Act on Competition and Consumer Protection defines a 'takeover of control' as a situation where an undertaking acquires in any form, whether directly or indirectly, such rights that – whether individually or jointly, and taking into account all legal or factual circumstances – allow it to exercise a decisive influence upon another undertaking or other undertakings. In particular, such powers are created by:

  • holding, directly or indirectly, a majority of votes at the shareholders' meeting or general meeting of shareholders, also in the capacity of a pledgee or user, or on the management board of another undertaking, also under agreements with other persons;
  • having the right to appoint or dismiss a majority of members of the management board or supervisory board of another undertaking, also under agreements with other persons;
  • appointing members of one undertaking's management board or supervisory board to form more than half of the members of another undertaking's management board;
  • holding directly or indirectly a majority of votes in a dependent partnership or at the general meeting of a dependent cooperative, also under agreements with other persons;
  • owning all or some of the assets of another undertaking; or
  • entering into an agreement for the management of another undertaking or the transfer of profit by such undertaking.

The above list is not exhaustive.

An acquisition of control may also take place in the case of certain factual circumstances that eventually lead to a takeover of control – for example, possession of a substantial package of shares not giving the right to more than 50% of the votes in the bodies of another undertaking but rather, for example, to 40% of the votes where the votes of other partners are significantly fragmented.

2.3 Is the acquisition of minority interests covered by the merger control regime, and if so, in what circumstances?

The Act on Competition and Consumer Protection does not provide for an obligation to notify a concentration where the acquisition involved is that of a minority or other interest that does not result in a takeover of control. Nevertheless, an acquisition of control may also take place in the case of some factual circumstances that eventually lead to a takeover of control – for example, possession of a substantial package of shares not giving the right to more than 50% of the votes in the bodies of another undertaking but rather, for example, to 40% of the votes where the votes of other partners are significantly fragmented.

Also, a situation where one undertaking creates a joint venture and then transfers it to another party will be notifiable where this is process is functionally linked to the creation of a new undertaking, albeit divided into stages and not a situation in which a minority stake in an existing business is acquired.

2.4 Are joint ventures covered by the merger control regime, and if so, in what circumstances?

Full-function and non-full-function joint ventures are caught by the Act on Competition and Consumer Protection regardless of the existence of joint control over such joint venture.

There were some doubts as to whether the notification requirement should also extend to a situation where one undertaking first creates another undertaking and then disposes of its shares to others. The Guidelines on the Criteria and Procedure of Notifying the Intention of Concentration to the Office for Competition and Consumer Protection and case law (Decision DKK-104/10 of 10 November 2010, PGNiG/Tauron) confirm that this scenario requires notification.

There is no such certainty with regard to the treatment of situations where a company has existed on the market for some time and then a new shareholder acquires a minority interest (which does not give control over the company). The guidelines seem to suggest that this situation also needs to be notified; however, it is difficult to agree with this approach (the acquisition of a non-controlling minority interest was removed from the list of concentration types several years ago).

It may thus be assumed that a situation where one undertaking creates a joint venture and then transfers it to another party will be notifiable when this process is functionally linked to the creation of a new undertaking, albeit divided into stages, and not a situation in which a minority stake in an existing business is acquired.

2.5 Are foreign-to-foreign transactions covered by the merger control regime, and if so, in what circumstances?

There may be situations in which foreign-to-foreign transactions must be notified to the Office for Competition and Consumer Protection. Under the Act on Competition and Consumer Protection, the notification obligation (even with respect to a transaction to be finalised outside the territory of Poland) exists where a concentration has or may have effects in the territory of Poland.

The act is silent on what criteria are to be taken into account when assessing the effect. According to the Guidelines on the Criteria and Procedure of Notifying the Intention of Concentration to the Office for Competition and Consumer Protection, in the case of concentrations that involve the creation of a joint venture – due to their specific nature – when assessing whether the condition of effect in the territory of Poland is met, the subject and scope of the activity of this entity should also be taken into account: namely, whether this activity will affect the territory of Poland or a part thereof.

Thus, if the markets in which the created entrepreneur will operate or markets in which there will be vertical links between this entity and active participants do not cover the territory of Poland or a part thereof, it should be concluded that the premise of effect in the territory of Poland will not be met. An example would be the creation of a joint venture for the purpose of generating and marketing electricity outside Poland (eg, in France), because the markets for the generation and marketing of electricity, according to the case law to date, have a national dimension.

2.6 What are the jurisdictional thresholds that trigger the obligation to notify? How are these thresholds calculated?

A concentration is notifiable where:

  • the combined worldwide turnover of the undertakings participating in the concentration in the financial year preceding that of notification exceeded the equivalent of €1 billion; or
  • the combined turnover of the undertakings participating in the concentration in the territory of Poland in the financial year preceding that of notification exceeded the equivalent of €50 million.

The turnover of an undertaking that is jointly controlled by any member of the capital group of a party to the concentration will be attributed to such capital group in proportion to its interest in the jointly controlled undertaking.

In the case of an acquisition of control, the turnover mentioned above relates to:

  • the turnover generated by the buyer's group; and
  • the turnover generated by the target and its subsidiaries.

In the case of an acquisition of property of another undertaking, the turnover mentioned above relates to:

  • the turnover generated by the buyer's group; and
  • the turnover generated by the acquired property.

In the case of separate concentrations occurring between the same groups of undertakings within a period of two years, the turnover figures of the acquired targets must be added together. This is intended to prevent undertakings from circumventing the obligation to notify by splitting a larger transaction into smaller parts that would not qualify for notification if considered separately.

Apart from the aforementioned, there are no other thresholds (eg, relating to market shares of the participants). This means that even transactions that have de minimis impact on competition in the relevant markets are caught by the merger control regime if only one of the thresholds is met. There are, however, exemptions from this general rule.

2.7 Are any types of transactions exempt from the merger control regime?

Under the Act on Competition and Consumer Protection, filing is mandatory where:

  • the jurisdictional thresholds are met; and
  • no exemptions from the notification obligation apply.

The obligation to notify an intention of concentration does not apply in the following cases:

  • The turnover generated by the undertaking over which the control is to be taken (the target undertaking and its subsidiaries) in the territory of Poland did not exceed the equivalent of €10 million in each of the two financial years preceding the notification.
  • The turnover of none of the undertakings taking part in a merger or founding a joint venture in the territory of Poland exceeded €10 million in each of the two financial years preceding the transaction.
  • Control is taken over an undertaking or a group of undertakings belonging to the same capital group and simultaneously a part of the assets of the undertaking or the group of undertakings belonging to the capital group is acquired, if the turnover of the undertaking or undertakings to be taken over and the turnover generated by the part of assets to be acquired in the territory of Poland did not exceed €10 million in each of the two financial years preceding the transaction.
  • A financial institution whose normal activities include investing in stocks and shares of other undertakings, on its own account or on the account of others, acquires or takes over, on a temporary basis, stocks and shares with a view to reselling them, provided that such resale takes place within one year of the date of the acquisition or takeover and that:
    • this institution does not exercise the rights arising from these stocks or shares, except the right to dividend; or
    • this institution exercises these rights solely to prepare for the resale of all or part of the undertaking or its assets, or these stocks and shares.
  • An undertaking acquires or takes over, on a temporary basis, stocks and shares with a view to securing debts, provided that the undertaking does not exercise the rights arising from these stocks or shares, except the right to sell.
  • The concentration arises as an effect of insolvency proceedings, excluding cases in which control is to be taken over or the assets are to be acquired by a competitor or a participant of the capital group to which the competitors of the undertaking to be taken over or whose assets are to be acquired belong.
  • The concentration applies to undertakings participating in the same capital group.

3 Notification

3.1 Is notification voluntary or mandatory? If mandatory, are there any exceptions where notification is not required?

Under the Act on Competition and Consumer Protection, filing is mandatory where:

  • the jurisdictional thresholds are met; and
  • no exemptions from the notification obligation apply.

3.2 Is there an opportunity or requirement to discuss a planned transaction with the authority, informally and in confidence, in advance of formal notification?

There are no official pre-notification contacts before formal submission of the notification; however, the Guidelines on the Criteria and Procedure of Notifying the Intention of Concentration to the Office for Competition and Consumer Protection indicate that it is possible to contact the Office for Competition and Consumer Protection (OCCP) before filing.

3.3 Who is responsible for filing the notification?

The intention of concentration should be notified by:

  • the merging undertakings jointly;
  • the undertaking that is taking over control;
  • all undertakings participating in the creation of a joint undertaking jointly; or
  • an undertaking that is acquiring some of the assets of another undertaking.

The general rule is that the notification must be submitted by the undertakings that are directly participating in the concentration. However, where a dominant undertaking implements a concentration through at least two dependent undertakings, the notification should be submitted by the dominant undertaking.

If the undertakings that are directly participating in the concentration include a corporate vehicle established solely for the purpose of the transaction and to which the intent of concentration cannot be attributed, the notification can be submitted by the dominant undertaking with respect to such a corporate vehicle; however, in such case, the notifying party must clearly indicate in the notification that the undertaking taking over control is a corporate vehicle only.

3.4 Are there any filing fees, and if so, what are they?

The fee to be paid for an application to initiate proceedings in concentration cases amounts to PLN 15,000.

3.5 What information must be provided in the notification? What supporting documents must be provided?

The official filing form – the List of Information and Documents (LID), as established by the Regulation of the Council of Ministers of 23 December 2014 – requires that rather detailed information regarding the planned transaction be provided by the notifying party in the notification (even if there are no overlaps between the undertakings concerned).

Section 1 of the LID contains questions relating to the undertakings concerned – for example:

  • data identifying:
    • the undertakings involved;
    • the authorities authorised to represent them;
    • the subject of the actual activity; and
  • a detailed description of the intended concentration.

Section 2 involves information on:

  • the relevant markets; and
  • the effects of the transaction on the market.

A detailed market analysis is necessary when the market is:

  • affected horizontally or vertically; or
  • affected by a conglomerate concentration.

The LID, as well as the application itself, must be submitted in Polish. The application usually runs to around 35 to 40 pages, plus attachments.

The LID must be submitted together with certain documents, such as:

  • excerpts from relevant commercial registers for the applicants;
  • executed versions of the most relevant transaction documents;
  • the most recent financial statements of the parties concerned; and
  • organisational charts of the parties concerned.

Documents prepared in a foreign language must have a sworn Polish translation.

3.6 Is there a deadline for filing the notification?

The Act on Competition and Consumer Protection does not provide for a specific deadline as such for filing of the notification. The intention of concentration must be notified, meaning that the notification must be submitted before the concentration is implemented (ie, prior to closing). In other words, the parties to a concentration are obliged to refrain from implementing the transaction until:

  • (unconditional or conditional) clearance is obtained; or
  • a one-month waiting period has elapsed without the Office for Competition and Consumer Protection (OCCP) making its decision (the guillotine effect). That said, clearance by the mere passage of time is rather unlikely.

The act provides for a worldwide bar on closing.

3.7 Can a transaction be notified prior to signing a definitive agreement?

The LID must be submitted together with certain documents, one of which is an executed version of the most relevant transaction document.

3.8 Are the parties required to delay closing of the transaction until clearance is granted?

The undertakings whose intention of concentration is to be notified must refrain from implementing the concentration until either:

  • the OCCP has issued its decision; or
  • the timeframe within which it must issue its decision has elapsed.

3.9 Will the notification be publicly announced by the authority? If so, how will commercially sensitive information be protected?

The following information is available on the OCCP's website:

  • the fact that a notification has been submitted;
  • the date of submission;
  • the notifying party; and
  • the current status of the proceedings.

During anti-monopoly proceedings, undertakings must disclose all information available, including information that may involve business secrets. The OCCP may, on an ex officio basis or on application of the undertaking concerned, limit access to certain information by other parties (if there is more than one party to the proceedings). In such case, the undertaking should file all documents in two versions: one confidential and the other non-confidential, the latter being available to all parties.

Furthermore, when imposing conditions on an undertaking, the OCCP, following an application from the undertaking concerned, will not disclose the deadlines for the fulfilment of such conditions. The obligation in question remains valid until the fulfilment of these conditions but no later than the expiry of the deadline for their fulfilment. Moreover, in the case of the abovementioned application, the OCCP will not include such deadlines in the publicly available version of the decision. This is aimed at protecting the commercial interests of the undertakings concerned.

There is a general obligation on OCCP employees to protect business secrets. This may mean having to mark information for treatment as a business secret even if there is only one party to the proceedings. Additionally, when the OCCP prepares the statement of reasons for its decision, it will not disclose information marked as a business secret.

4 Review process

4.1 What is the review process and what is the timetable for that process?

In 2015, Poland finally adopted a two-stage merger review procedure – something that had been desired since the first modern competition legislation was adopted in 1990.

The Act on Competition and Consumer Protection currently stipulates that anti-monopoly proceedings in non-problematic concentration cases should be finalised within one month of commencement (first stage review). Complex cases and cases that may cause competition concerns (where there is a risk that a significant impediment to competition might occur) or that require a sector inquiry will enter a second stage review by way of resolution of the Office for Competition and Consumer Protection (OCCP), which cannot be appealed. This entails a four-month extension of the process, prolonging the duration of the whole procedure to five months in total.

The OCCP can stop the clock – in any of the stages – each time it asks questions or requires new data or documents to be provided in the course of the proceedings. The deadline may also be extended if:

  • a statement of objections is issued; or
  • remedies are being discussed.

4.2 Are there any formal or informal ways of accelerating the timetable for review? Can the authority suspend the timetable for review?

The Act on Competition and Consumer Protection sets out a two-stage merger review procedure. The first stage takes up to one month, which is potentially extendable to five months if the concentration requires an in-depth review in the second stage.

There are no official pre-notification contacts before formal submission of the notification. However, the Guidelines on the Criteria and Procedure of Notifying the Intention of Concentration to the Office for Competition and Consumer Protection indicate that it is possible to contact the OCCP before filing.

4.3 Is there a simplified review process? If so, in what circumstances will it apply?

The Act on Competition and Consumer Protection sets out a two-stage merger review procedure. The first stage takes up to one month, which is potentially extendable to five months if the concentration requires an in-depth review in the second stage. There is no simplified review procedure.

4.4 To what extent will the authority cooperate with its counterparts in other jurisdictions during the review process?

The OCCP is a member of numerous international working groups (eg, the International Competition Network), the most important of which are those involving the competition authorities of other EU member states. OCCP officials attend meetings of the Advisory Committee established by the EU Merger Regulation, which provides detailed rules on cooperation between member states and the European Commission in concentration cases.

There are currently three binding bilateral agreements between the OCCP and its Ukrainian and Hungarian counterparts.

4.5 What information-gathering powers does the authority have during the review process?

The Office for Competition and Consumer Protection (OCCP) may ask questions or require new data or documents to be provided in the course of the proceedings. The OCCP can also run a market investigation by way of a resolution of the OCCP, which cannot be appealed.

4.6 Is there an opportunity for third parties to participate in the review process?

Customers and competitors are not parties to the proceedings, which means that they do not have access to files and cannot appeal against the decision. However, third parties:

  • may file comments on their own initiative; and
  • may be asked by the Office for Competition and Consumer Protection (OCCP) to file input on important aspects of the case.

The OCCP keeps a register of all notified concentrations on its website, which may be helpful for third parties.

When it comes to complicated transactions, the OCCP will, in principle, organise a market test and send questionnaires to competitors, clients and suppliers, allowing them to take a position.

4.7 In cross-border transactions, is a local carve-out possible to avoid delaying closing while the review is ongoing?

In one decisions issued by the OCCP (DOK-37/2007 Olympus Capital Holdings Asia/Arysta Life Science, 6 April 2007), the OCCP seemed to hold that the concentration could be completed before its clearance, as long as the parties refrained from implementing the Polish aspect of the transaction, which had local effects in Poland. In this decision, the OCCP did not question the rationale for completing the transaction before clearance; it merely pointed out that no relevant evidence was offered to show that the parties had refrained from implementing that aspect of the transaction which had local effects in Poland.

Because there is only one such decision – an exception to the rule, which is very old and which was adopted under the previous Competition Law – and the current Guidelines on the Criteria and Procedure of Notifying the Intention of Concentration to the Office for Competition and Consumer Protection indicate that this scenario is unlikely, such solutions will always be associated with risk.

4.8 What substantive test will the authority apply in reviewing the transaction? Does this test vary depending on sector?

The OCCP will clear concentrations that do not result in a significant impediment to competition (SIEC) in the market – in particular, through the creation or strengthening of a dominant position in the market. This means that, in practice, the OCCP follows the SIEC test.

The Act on Competition and Consumer Protection defines a 'dominant position' as a position of an undertaking that allows it to prevent effective competition within a relevant market, thus enabling it to act to a significant degree independently of competitors, contracting parties and consumers. It is assumed that an undertaking holds a dominant position if its market share exceeds 40%.

The OCCP may also issue conditional decisions and decisions under Article 20.2 of the act, which offers clearance despite a SIEC.

4.9 Does a different substantive test apply to joint ventures?

There is no special substantive test for joint ventures; full-function and non-full-function joint ventures are caught by the Act on Competition and Consumer Protection.

4.10 What theories of harm will the authority consider when reviewing the transaction? Will the authority consider any non-competition related issues (eg, labour or social issues)?

In assessing concentrations, the OCCP focuses mainly on whether the SIEC test is met, especially where a dominant position is created or strengthened. In practice, the following factors still play a crucial role in the assessment of concentrations by the OCCP:

  • post-merger market shares;
  • concentration of the market (measured by the Herfindahl-Hirschman Index); and
  • post-merger market structure.

5 Remedies

5.1 Can the parties negotiate remedies to address any competition concerns identified? If so, what types of remedies may be accepted?

Yes. Under the Act on Competition and Consumer Protection, the Office for Competition and Consumer Protection (OCCP) may clear a concentration provided that the undertakings concerned fulfil certain conditions (conditional clearance).

These conditions may involve, in particular:

  • the disposal of all or some of the assets of one or several undertakings;
  • the divesture of control over an undertaking or undertakings, in particular by the disposal of a block of stocks or shares;
  • the dismissal of one or several persons from the management or supervisory board; or
  • the grant of exclusive rights to a competitor.

The decision will specify the timeframe for meeting the conditions.

5.2 What are the procedural steps for negotiating and submitting remedies? Can remedies be proposed at any time throughout the review process?

In the case of transactions that are considered to significantly restrict competition on the relevant market due to substantial aggregation of market share or a reduction in strong competitors on the market, the OCCP will likely issue a conditional decision including commitments. Commitments are intended to ensure that the affected markets remain competitive.

In practice, the parties submit their proposal of commitments to the OCCP when the latter raises concerns over a transaction. Although the commitment proposal is subject to the OCCP's revision, conditional clearance may be issued only if the party consents to the type and scope of commitments; otherwise, the OCCP will issue a prohibition decision.

The OCCP is entitled to determine, at its sole discretion, the type and scope of commitments. Moreover, the addressee of the conditional decision must provide the OCCP with information regarding the enforcement of commitments.

The OCCP obliges the acquiring party to submit such information within a period prescribed in the commitment decision.

The Act on Competition and Consumer Protection provides for two types of commitments: behavioural and structural. The OCCP tends to impose structural rather than behavioural remedies, such as the obligation to permanently dispose of specified assets (eg, Decision DKK-9/09 of 25 February 2009; Decision DKK-64/10 of 12 July 2010; and Decisions DKK-128/2011, DKK-70/11 and DKK-40/2014 of 31 March 2014).

Regarding behavioural remedies, in Decision DKK-49/08 of 19 June 2008, the OCCP gave clearance on condition that the undertaking withdraw from and not initiate any actions designed to acquire any ownership rights in the other undertaking. In Decision DKK-156/2017 of 4 October 2017, the OCCP gave clearance on condition that the acquirer, within the agreed timeframe, sell all of the electricity produced in one of the assets of the acquired company through the commodity exchange.

In Decision DKK-51/2019 of 25 February 2019, the OCCP combined both structural (divestment of part of the business) and behavioural (certain duration of contracts with clients and price limits for certain clients) remedies to allow the concentration and protect the competition landscape of the markets concerned.

5.3 To what extent have remedies been imposed in foreign-to-foreign transactions?

To the best of our knowledge, there is no such track record; however, in principle, remedies also apply to foreign-to-foreign mergers.

In Decision DOK-36/2004 of 18 May 2004, the OCCP gave clearance on condition that an undertaking based in France dispose of its assets, including those located in France, to a third party, which proves that the remedies may also involve assets located outside Poland.

6 Appeal

6.1 Can the parties appeal the authority's decision? If so, which decisions of the authority can be appealed (eg, all decisions or just the final decision) and what sort of appeal will the reviewing court or tribunal conduct (eg, will it be limited to errors of law or will it conduct a full review of all facts and evidence)?

A decision of the Office for Competition and Consumer Protection (OCCP) may be appealed to the Court of Competition and Consumer Protection. The appeal must be lodged within one month of the date on which the decision is served (owing to amendments, the time limit to lodge an appeal has been extended from 14 days to one month).

Upon appeal, the OCCP should, without delay but no later than three months following the date of filing the appeal, transmit the appealed decision to the Court of Competition and Consumer Protection together with the record of proceedings. Where the OCCP considers the appeal to be justified, it may repeal or amend the decision, whether in whole or in part, without transmitting the record to the court. Any such repeal or amendment must be notified to the party concerned without delay by sending it a new decision, which is also open for appeal. Where justified, prior to transmitting an appeal to the court or repealing or amending its decision, the OCCP may also perform additional activities to clarify objections presented in the appeal.

To the best of our knowledge, one merger appeal case – a prohibition decision in the energy sector (Decision DKK-1/2011, PGE/Energa) – was upheld by the Court of Competition and Consumer Protection. A second case – the OCCP's prohibition on the takeover of Merlin by NFI Empik (Decision DKK-12/2011 of 2 March 2011), which was an intended concentration in the market for online sales of non-specialised books and music CDs – was withdrawn by the undertaking that lodged the appeal a few days before the court hearing. In a third case, the OCCP issued a prohibition decision in the media sector forbidding Agora SA from acquiring the Eurozet sp zoo media group (Decision DKK-1/2021 of 7 January 2021). That decision, however, was quashed by the Court of Appeals in 2023 and the concentration was ultimately implemented.

6.2 Can third parties appeal the authority's decision, and if so, in what circumstances?

Customers and competitors are not parties to the proceedings. This means that they do not have access to files and cannot appeal against decisions.

7 Penalties and sanctions

7.1 If notification is mandatory, what sanctions may be imposed for failure to notify? In practice, does the relevant authority frequently impose sanctions for failure to notify?

If an undertaking has implemented a concentration, even if unintentionally, without clearance from the Office for Competition and Consumer Protection (OCCP), the Act on Competition and Consumer Protection allows the OCCP to fine the undertaking by way of a decision, with the fine not to exceed 10% of the turnover earned by the undertaking in the financial year preceding that in which the fine is imposed.

Moreover, Article 108 of the act provides for the imposition of fines on persons holding managerial positions or members of managing bodies of such undertakings if those persons or members have not notified an intention of concentration. The fine may be up to 50 times the average monthly remuneration in the business sector in Poland in the last month of the quarter preceding the date of issuance of a decision.

Additionally, the OCCP may revoke its decisions if:

  • they were based on misrepresentations for which the undertakings participating in the concentration were responsible; or
  • the undertakings did not comply with the conditions (remedies) specified by the OCCP.

Once revoked, the decision may be re-adjudicated by the OCCP on the merits of the case.

If, in the cases described above, the concentration has already been implemented and restoration of competition in the market is otherwise impossible, the intention to concentrate has not been notified or a concentration ban has not been respected, the OCCP may order measures such as:

  • division of the merged undertaking;
  • disposal of the undertaking's assets;
  • disposal of stocks or shares conferring control; or
  • dissolution of a jointly controlled company.

Examples include the following:

  • In Decision DKK-1/07 of 12 July 2007, the OCCP fined Sobieski Trade PLN 40,000 for failure to notify.
  • In Decision DKK-37/09 of 18 June 2009, the OCCP imposed a fine of PLN 70,000 on Przedsiębiorstwo Państwowe Porty Lotnicze (the national airport operator) and the provincial government of the Subcarpathian Voivodeship, again for failure to notify.
  • In 2012, the OCCP issued two decisions and, in 2013, it issued only one decision imposing fines for non-compliance with the obligation to notify a concentration.

Among more recent cases, two decisions from 2017 are notable:

  • In Decision DKK-86/2017 of 5 June, grocery wholesaler Bać-Pol SA was fined PLN 527,000 for failure to notify the takeover of a portion of assets of another company, Klementynka. The OCCP initiated proceedings against Bać-Pol after receiving information that one of its subsidiaries had implemented a concentration without prior authorisation from the OCCP.
  • In Decision DKK-145/2017 of 19 September, a consumer egg producer had to pay PLN 339,000 for failure to notify its takeover of a portion of the assets of another company operating in the same relevant market.

To date, no penalties have been imposed on individuals (management board members) in any case.

The highest fine issued by the OCCP was the fine of PLN 29 billion imposed on Gazprom in 2020. In addition, fines of over PNL 234 million were imposed on the five other participants in the joint venture concerning the Nord Stream 2 pipeline, which was not properly notified to the OCCP. The establishment of the planned joint venture company had previously been notified to the OCCP as a concentration, but the filing was withdrawn after objections were received from the OCCP. The OCCP subsequently accused the participants of the joint venture of implementing the concentration without the requisite consent. The fine, however, was quashed by the Polish court of first instance and the case is currently under appeal.

The only cases that have been made public are cases in which the concentration was completed (ie, the transaction was closed or the joint venture was formed and registered) prior to clearance. Moreover, fines were imposed on undertakings for late notification of a merger.

7.2 If there is a suspensory obligation, what sanctions may be imposed if the transaction closes while the review is ongoing?

Undertakings whose intention of concentration must be notified must refrain from implementing the concentration until:

  • the OCCP has issued its decision; or
  • the time limit within which it must issue its decision has elapsed.

If an undertaking has implemented a concentration, even if unintentionally, without clearance from the OCCP, the Act on Competition and Consumer Protection allows the OCCP to fine the undertaking by way of a decision, with the fine not to exceed 10% of the turnover earned by the undertaking in the financial year preceding that in which the fine is imposed.

Moreover, Article 108 of the act authorises the imposition of fines on persons holding managerial positions or members of managing bodies of such undertakings if the persons or members have not notified an intention of concentration. The fine may be up to 50 times the average monthly remuneration in the business sector in Poland in the last month of the quarter preceding the date of issuance of a decision.

Additionally, the OCCP may revoke its decisions if:

  • they were based on misrepresentations for which the undertakings participating in the concentration were responsible; or
  • the undertakings have not complied with the conditions (remedies) specified by the OCCP.

Once revoked, the decision may be re-adjudicated by the OCCP on the merits of the case.

7.3 How is compliance with conditions of approval and sanctions monitored? What sanctions may be imposed for failure to comply?

The OCCP may revoke its decisions if:

  • they were based on misrepresentations for which the undertakings participating in the concentration were responsible; or
  • the undertakings have not complied with the conditions (remedies) specified by the OCCP.

Once revoked, the decision may be re-adjudicated by the OCCP on the merits of the case.

8 Trends and predictions

8.1 How would you describe the current merger control landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

To the best of our knowledge, no such new developments are anticipated in the next 12 months.

9 Tips and traps

9.1 What are your top tips for smooth merger clearance and what potential sticking points would you highlight?

To ensure smooth merger clearance, it is important to:

  • prepare a clear, coherent and comprehensive notification;
  • provide comprehensive responses to any requests for information from the Office for Competition and Consumer Protection (OCCP) as soon as possible, so that the OCCP's clock is not paused for a long time; and
  • keep in touch with the appointed case-handler and, if necessary, with senior employees of the OCCP.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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