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Dr hab. Mateusz Błachucki
ORCID: 0000-0001-5805-048X

Associate Professor at the Department of Administrative Law of the Institute of Legal Studies of the Polish Academy of Sciences. He conducts scientific research in the field of antimonopoly law, administrative procedures and transnational administrative law.

 
DOI: 10.33226/0137-5490.2024.4.6
JEL: K21, K41

The  gloss  addresses  the  issue  of  the  legal  basis  and substance of interim protection  granted to a plaintiff who has appealed a decision concerning concentration control issued by the  President of the Office of Competition and Consumer  Protection  (OCCP)  in  an  administrative  proceeding, while simultaneously seeking a suspension of the decision's execution. The court  determined that the grant of interim protection constitutes a legal impediment to carrying out the  concentration. However, in contrast to European   merger   control   regulations,   the   Polish  Antimonopoly  Act  does  not  intervene  in  the  civil-law relationships   of   the   transaction    parties,   and   the concentration itself remains legally effective regardless of the court's  ruling.

Keywords: merger control; interim protection; suspension of execution of decision; suspension of concentration
DOI: 10.33226/0137-5490.2022.11.7
JEL: K21, K41

The gloss is a commentary to the judgment issued by the Court of Appeals in Warsaw concerning the fine imposed on an undertaking for carrying out a concentration in the form of the acquisition of assets of another undertaking without the obligatory notification of the transaction to the President of the Office for Competition and Consumer Protection (OCCP). The analysed ruling touches on three important issues: the concept of concentration in the form of the acquisition of assets, calculating the turnover of entities involved in such concentration, as well as succession of antimonopoly liability. While the court's considerations in relation to the first and last issue may deserve approval, the concept of calculating the turnover in the case of acquiring part of the assets of another undertaking presented should not be appraised. In the circumstances of this case, it is impossible not to see the contradiction in the Court's finding that all of the undertaking's essential assets were acquired, while at the same time expecting to determine what proportion of the turnover was generated by the rest of the seller's assets, which was devoid of economic significance. This concept is not sufficiently supported by linguistic interpretation, ignores the unchallenged findings in this case about the dominant importance — in terms of turnover volume — of the acquired part of the assets of the seller's business, seems overly formalistic, contradicts the administrative practice of the President of the OCCP, and most of all contradicts the goals of the antimonopoly act. Last but not least, this concept is also irreconcilable with arguments of a functional nature, and in particular leads to imposing impossible obligations on entrepreneurs and the President of OCCP.

Keywords: merger control; notification obligation; purchase of certain assets of another undertaking; calculation of turnover; succession of antimonopoly liability