The President of UOKiK has imposed on P4 and Polkomtel an obligation to change the anti-competitive provisions of the agreement. It has been 17th commitment decision, issued by the Office this year

Antimonopoly proceedings against P4 and Polkomtel, concerning terms and conditions of national roaming services, were initiated in February this year. The national roaming enables to use foreign networks, whenever a subscriber is unavailable to the network of the operator with whom they concluded an agreement on provision of mobile phone services. UOKiK analysis showed that the two mobile phone operators – P4 and Polkomtel – have concluded an illegal agreement.

At the end of 2008 four telecommunication network operators provided their services on the Polish market of mobile telephony. Three of them - Polkomtel, Polska Telefonia Cyfrowa and Polska Telefonia Komórkowa Centertel - had full mobile network infrastructure of national coverage. The fourth operator, P4, had a limited geographical coverage as it entered the market only in 2007 and didn’t have enough time to develop its own infrastructure. In order to provide mobile phone services on the territory of Poland, P4 had to be granted the access to another telecommunications operator’s network. For this purpose P4, as the recipient of the service, concluded an agreement on national roaming with Polkomtel, which had its own network.

In the course of the proceedings it was rendered plausible that provisions of the concluded agreement are non-compliant with the consumer and competition protection law – in particular an obligation imposed on P4 to purchase access exclusively to the network of Polkomtel. In addition, the agreement guaranteed Polkomtel the right of priority to provide the service in question before other operators. The Office considered that terms and conditions of the agreement signed between the companies could have resulted in competition resticting practices.

The Office does not contest the right of entrepreneurs to conclude exclusivity agreements or reservation of the priority right among contracting parties. However, such clauses are prohibited in long-term agreements as they may restrict competition on a given market.

Due to the fact that the companies undertook to change terms and conditions of the agreement and remove the contested anti-competitive clauses, the Office did not impose on the entrepreneurs any financial penalties that could otherwise amount to a maximum of 10 percent of their revenues. The Act on competition and consumer protection stipulates that in case of issuance of a commitment decision the President of the Office does not apply financial penalties to entrepreneurs accused of participation in an anti-competitive agreement. Financial sanctions may be applied, if companies undertake to change their practice but for various reasons do not exercise the undertaken committments. Then, the maximum financial sanction amounts to 10 000 euro per each day of delay in implementation of the commitments.

As regards the agreement concluded between Polkomtel and P4, the Office considers that fulfillment of the obligations will rule out the contested clauses, and simultaneously, will lead to the market operating fully compliant with the competition law. The companies were also obliged to report on the implementation of the commitments during the subsequent three years of their cooperation.

Since the beginning of this year UOKiK has issued 17 commitment decisions. A decision which obliges to cease contested activities, without imposing a severe financial penalty, clearly shows that not every decision issued by UOKiK concerning the alleged application of competition-restricting practices limiting entails a financial sanction. In 2004-2008 UOKiK issued over 40 commitment decisions, which constitutes the highest number among the EU Member States. Confronting this with other countries, within the same time period, France made use of this possibility 24 times and Germany only five.

Additional information:
Małgorzata Cieloch, Spokesperson for UOKiK
Department of International Relations and Communication
Pl. Powstańców Warszawy 1, 00-950 Warsaw, Poland
Tel. (+48 22) 827 28 92, 55 60 106, 55 60 430
faks (+48 22) 826 11 86
E-mail: malgorzata.cieloch@uokik.gov.pl