Poland: UOKiK fines gas distributors for gun jumping and information delay

Introduction

On 22 September 2020 the Office of Competition and Consumer Protection (UOKiK) fined liquefied petroleum gas (LPG) distributor AmeriGas Polska Zl730,000 (€160,000) for failing to notify a takeover.

At the same time, the UOKiK imposed a Zl120,000 (€26,800) penalty on Linde Gaz Polska for lack of cooperation following an information request in the context of merger market research.

Fine for gun jumping

The UOKiK found that AmeriGas had taken over control of Centrum Dystrybucji Gazu (CDG) without the UOKiK's consent, even though it was obliged to obtain it. CDG is a Gdynia-based distributor of LPG in cylinders.

The UOKiK stated that the companies had entered into a pledge agreement which guaranteed AmeriGas additional rights, thanks to which the company could influence key decisions regarding the management of CDG.

Under Polish law, concluding a pledge agreement on shares does not require the UOKiK's consent, provided that the entrepreneur does not exercise the rights attached to these shares (except for the right to sell them).

However, AmeriGas exercised these rights, for example by blocking the sale of an organised part of the assets of CDG, which was afterwards partially acquired by AmeriGas.

UOKiK President Tomasz Chróstny said that AmeriGas had not notified the UOKiK of the transaction and the agency had learned about it from other sources.

The company had been aware of the existence of such an obligation, because in another case it had applied for regulatory consent.

Chróstny added that, in his opinion, the company had acted intentionally from the beginning, thus breaking the applicable laws protecting competition on the market.

Chróstny said that in this case he found no mitigating circumstances and decided to impose a financial penalty.

Fine for information delay

The UOKiK also stated that it fined Linde Gaz Polska Zl120,000 for lack of cooperation after the Krakow-based industrial gas supplier had not provided information requested by the agency.

When assessing a notified transaction on the liquid carbon dioxide market, the UOKiK decided to conduct market research and sent queries to all businesses operating in the field.

In accordance with the law, businesses must provide all necessary information and documents, otherwise they face a financial penalty.

However, Linde Gaz did not reply within the set deadline and submitted its reply to the UOKiK two months later.

This article was first published on International Law Office, 06.05.2021.
author: Pawel Kulak