Poland’s Office of Competition and Consumer Protection (UOKiK) appealed a first instance court ruling which overturned UOKiK’s decision regarding an agreement between the four largest mobile telephony providers operating in Poland.  

The appeal concerns a 5 June ruling in which the Court of Competition and Consumer Protection (SOKiK) overturned the November 2011 decision in which UOKiK found that the four largest mobile telephony operators in Poland — Polkomtel, Polska Telefonia Cyfrowa (currently T-Mobile), PTK Centertel (currently Orange), and P4 — had entered an illegal agreement. The case turned on an Office of Electronic Communications competition for the reservation of frequencies to enable, among other operations, TV reception on mobile telephony devices (DVB-H). Two entities submitted bids in this competition — Info-TV-FM, whose offer was the winning one, and the Mobile TV Consortium, which had been convened specifically for this purpose by the four mobile operators. While the latter was unsuccessful in its bid, large-scale provision of services to individual customers entailed execution of contracts with the consortium members. UOKiK found that the participants in this consortium, after losing the competition, illegally colluded to agree upon a coordinated approach in their dealings with Info-TV-FM. The four entities exchanged confidential information and also agreed how they would publically question Info-TV-FM wholesale offers.

In June, SOKiK overturned UOKiK’s decision, adopting the position that the operators’ behaviour was lawful. SOKiK argued that the four-way agreement did not have a competition-inhibiting effect and that UOKiK, having permitted the creation of the consortium, could not subsequently investigate the legality of its actions.

Having considered the written reasoning for SOKiK’s judgment, UOKiK has decided to file an appeal. UOKiK believes that the court of first instance failed to consider that, regardless of the effect of the agreement, it did in fact have an anti-competitive aim, thus contravening the legislative Act on competition and consumer protection as well as the Treaty on the Functioning of the European Union. UOKiK also believes that the court has interpreted the agreement on the creation of the consortium too broadly. UOKiK’s permission for a joint-venture cannot, under any circumstance, be construed as permission for the enterprises concerned to employ competition-inhibiting practices.

Additional information for the media:

Press Office, UOKiK
Pl. Powstańców Warszawy 1, 00-950 Warsaw
Phone.: +48 22 827 28 92, +48 22 55 60 314, +48 22 55 60 430
E-mail: [SCODE]Yml1cm9wcmFzb3dlQHVva2lrLmdvdi5wbA==[ECODE]