TY - JOUR
AU1 - Majcher, Klaudia
AB - I. Introduction Concerns about a multifaceted breakdown of the rule of law in Poland and the ongoing constitutional crisis have been preoccupying commentators and EU law enforcers in the last few years. Current discussions predominantly centre around the Polish laws on the judiciary that limit judges’ independence1 and already in 2017 triggered Article 7 TFEU rule of law proceedings by the European Commission (the Commission).2 In addition, questions about eroding media pluralism and freedom are increasingly coming to the fore as requiring more urgent attention. The national political agenda includes ‘repolonisation’ and ‘deconcentration’ of the media market to ‘ensure that there are more media outlets that present the world more truthfully.’3 There are concerns, however, that in practice these goals imply increasingly bold attempts to nationalise media companies and concentrate them under the control of the ruling party, Law and Justice.4 Over the past years, a number of independent reports have issued warning calls, invoking dangers of censorship, curbing editorial independence, and legal repressions against journalists.5 Key Points Eroding media pluralism and freedom in Poland are increasingly coming to the fore as concerns requiring urgent attention. The recent decisions by the Polish Competition Authority blocking the Agora/Eurozet merger and authorising the PKN Orlen/Polska Press transaction demonstrate how media-related concerns and competition enforcement intertwine. Judged through the lens of media pluralism and freedom, but also that of the quality of competition assessments, the two merger decisions are questionable models of legal analyses. Contentious theories of harm, an inadequate standard of proof, and the ways in which the decisions contribute to the breaching of media standards in Poland should trigger attention on the EU level. Against the background of increasing concerns about media freedom and democracy standards in Poland—and given that media pluralism is one of the fundamental principles guaranteed by the EU legal order6 and national constitutions7—this contribution looks into how the recent legal developments in the area of competition law might affect the media landscape. Specifically, it discusses two recent merger decisions issued by the President of the Office for Competition and Consumer Protection (the OCCP): the blocking of the Agora/Eurozet8 merger and the authorisation of the PKN Orlen/Polska Press9 transaction. After presenting the facts of the cases in part II, part III provides a critical commentary on the substantive legal analysis and the theories of harm on which the OCCP’s decisions are founded. As argued in the concluding part IV, clustering and analysing these two recent merger decisions, also against the broader background of the national political media agenda, expose concerning risks for media pluralism and independence in Poland. For the sake of completeness, it needs to be stated that Poland is not an isolated Member State where concerns related to the judiciary, the media landscape, and the rule of law more generally have triggered controversies over the past few years. Political and legal developments in Hungary are raising similar questions about the rule of law backsliding10 and its potential impacts on economic governance and institutional mechanisms, including the enforcement of competition law.11 II. Facts A. Agora/Eurozet The OCCP’s merger decision of 7 January 2021 concerned the acquisition by Agora, a company active in the area of publishing, internet information services, printing, and operation of radio stations in Poland, of Eurozet, a radio broadcaster. The President of the OCCP, who under Poland’s Act on Competition and Consumer Protection has an exclusive competence to assess concentrations, prohibited the transaction claiming that it would negatively affect competition. Such negative effects would materialise in particular in the national and local markets of broadcasting (distributing) radio programmes as well as in the national and local radio advertising markets. The theory of harm advanced in Agora/Eurozet is grounded primarily in a novel concept of a ‘quasi-duopoly’.12 In line with the decision’s analysis, the transaction would create a strong radio group and the post-transaction market structure would resemble a quasi-duopoly resulting in competitive distortions. Although the concept of a quasi-duopoly is not clearly defined, and the decision is vague about how such a market set-up differs from more typical duopolistic scenarios, it claims that negative effects on competition would be linked to the owned frequency bands. In this context, the authority briefly states that on a few local markets ‘a significant part of limited resources necessary to provide services—frequencies for which entities from the merging groups hold licenses—will be concentrated within one undertaking’.13 This would allow Agora to better cater its programmes to the audience and, as a result, offer more targeted advertising services that might give Agora a significant advantage over its competitors in the advertising markets. Both in a few local markets as well as on the national level, as the OCCP argues, there would be a quasi-duopoly formed by Agora and another significant market player, RMF Group. Such a post-transaction quasi-duopolistic structure would arguably significantly limit competition and increase the risk of implicit coordination of business practices by the duopoly—in particular as the market is very transparent—potentially resulting in higher prices, limited output, and less advantageous trading conditions for advertisers and intermediaries.14 As argued in more detail in the subsequent section III, the legal justification for blocking the transaction as presented by the OCCP is limited in scope, speculative, and contains vague conclusions on competition post-transaction. The blocking of Agora/Eurozet has also triggered concerns about the repercussions of the decision for media pluralism and independence, in particular given that Agora and its flagship daily newspaper, Gazeta Wyborcza, are open and popular critics of the ruling party. Agora expressed its reservations about the OCCP’s legal analysis of the acquisition also to the Commission, seeking reactions and possible interventions on the EU level.15 In Agora’s view, a number of substantive and procedural shortcomings—analysed in more detail in the commentary section below—point to concerns about potential political motivations and setting an undesirable precedent for national competition decision-making. Agora appealed the OCCP’s decision to the Court of Competition and Consumer Protection in Warsaw.16 B. PKN Orlen/Polska Press Group The second recent decision issued by the OCCP in the media market is its approval, issued on 5 February 2021, of the takeover by PKN Orlen refinery of Polska Press Group (PP). PKN Orlen is a state-controlled oil company, in which Poland holds 27.52 per cent stakes and has de facto corporate control. PKN Orlen is also active in the area of media through its media house Sigma BIS and press distribution, namely through recently acquired distribution company RUCH and PKN Orlen’s gas station stores. The acquired undertaking, PP, is one of the largest press publishers owned by the German company Verlagsgruppe Passau. The key areas of PP’s business activities include free and paid-for press (20 regional newspapers and over 100 local weekly newspapers), online information services (around 500 online portals), and printing facilities. The aim of acquiring PP, as stated by PKN Orlen, was to create ‘a flexible, personalised, and comprehensive offer’17 in the media sector. In the merger assessment, the President of the OCCP argues that PKN Orlen and PP operate on separate markets and no overlaps in the firms’ horizontal activities can be identified.18 In a vertical sense, however, the acquisition affects the market of press advertisement in a number of regions in Poland.19 While PKN Orlen is an advertiser and a media house (through Sigma BIS), the PP Group sells advertising space both in the press and online. Having analysed how the acquisition might affect competitive conditions in the markets of regional press advertisement, the OCCP did not identify any competitive threats. In line with the outlined reasoning, PKN Orlen’s spending on press advertisement on a regional level, including in the outlets owned by PP, is insignificant. Hence, the likelihood that following the transaction PKN Orlen would be able to prevent its competitors from placing advertisements in regional outlets is insignificant.20 In reaction to the takeover, Poland’s Human Rights Ombudsman Adam Bodnar filed a petition to suspend the approval on the grounds that the OCCP did not sufficiently scrutinise the impact of the takeover on competition in the media and press market, focusing solely on the advertising markets. The Ombudsman’s petition was in fact the first intervention of this type related to competition proceedings in Poland. Besides being incompatible with Polish competition law, the approval decision, as the Ombudsman argued, also affects constitutionally protected values of media pluralism and freedom as well as freedom of speech.21 The acquisition of a very significant regional publisher by the oil company controlled by the Polish state would, in fact, enable the ruling party to exert a greater influence over the media landscape, which threatens editorial independence and media pluralism. Similar concerns were voiced by a number of other organisations, including the Helsinki Foundation for Human Rights, the Journalist Society, the Citizens Network Watchdog Poland, and the Media Freedom Rapid Response.22 Following the Ombudsman’s petition, the Polish Court of Competition and Consumer Protection ruled to suspend the execution of the OCCP’s approval of the takeover until the settlement of the appeal. This interim measure imposed by the Court was then questioned by the OCCP, claiming that such a measure is ‘a disturbing precedent that may undoubtedly infringe the rights of entrepreneurs’.23 In addition, PKN Orlen did not respect the suspension and already replaced a number of editors-in-chief of PP’s outlets with journalist coming from pro-government media, which arguably supports voiced concerns about limiting press independence24 and giving rise to gun-jumping (i.e. prematurely realising the merger before obtaining a final clearance). III. Comment The two merger decisions have given rise to concerns regarding media pluralism and freedom in Poland as well as the potential instrumentalisation of the merger control to realise media-related objectives and a broader political agenda of the government. The section below clusters and analyses the core substantive legal problems identified in the two merger decisions: the theories of harm and the standard of proof, as well as the role of media pluralism and independence in competition assessments. It is worth noting that besides the substantive shortcomings described below, there are also procedural concerns voiced in particular by Agora. Such flaws, as described by Agora, relate in particular to the proceedings’ duration25 (a record of 15 months) and a sudden announcement of the decision at the beginning of the remedies negotiations.26 Although these process-related inadequacies will not be elaborated on in the commentary section below, they should be approached as an inherent part of the overall picture, further challenging the justifiability and quality of the two merger decisions. A. Theories of harm and the standard of proof The concept central to the legal analysis of harm in Agora/Eurozet is a ‘quasi-duopoly’, as already described in section II above. As such, duopolistic and oligopolistic post-transaction market structures might, under certain circumstances, give rise to a significant impediment of effective competition (SIEC) and market coordination, forming the basis for a prohibition decision by a competition authority.27 Yet, the OCCP’s decision does not comprehensively engage with the employed concept of a quasi-duopoly and the ensuing harm, triggering questions as to the adequacy of the implemented standard of proof. Indeed, the decision states only in very broad terms, and invoking almost no concrete evidence, that such a market structure and related threats for competition will follow. This ambiguity and the lack of clarity—what a quasi-duopoly means, why the market would assume such a structure following the acquisition, and why it is inferred that Agora and RMF FM will coordinate their market conduct and distort competition—were also pointed out by Agora in its brief to the Commission.28 On the EU level, discussions about an adequate standard of proof in merger control have resurfaced following the recent annulment by the General Court of the Commission’s CK Telecoms decision, which prohibited the acquisition of O2 by its competitor Three.29 As ruled in this landmark decision, the Commission did not prove to the requisite legal standard and by sufficiently convincing evidence the existence of an SIEC. By judging that impediments to competition post-transaction should be demonstrated ‘with a strong probability’30 in order to declare a merger anticompetitive, the Court has tightened the standard of proof and for the first time clearly voiced its expectations as to how solid the evidence and analysis need to be in future merger decisions taken by the Commission.31 The required standard of proof demonstrating an SIEC, as outlined by the Court, is therefore stricter than ‘more likely than not’ but less strict than a standard based on ‘being beyond reasonable doubt’.32 Although merger control at the national level is exclusively a matter of national law and no legal requirement of convergence if laws exists, such convergence within the European multi-jurisdictional merger system should be favoured over legal divergences and inconsistencies. To facilitate a more harmonised merger control system in the EU—both as regards substantive assessments and the necessary quality of proof—it would therefore be recommendable that decisions on the national level embrace requirements similar to those formulated in CK Telecoms. Judging the OCCP’s decision through this lens, however, it is highly doubtful that such requirements would be satisfied—even taking as a benchmark pre-CK Telecoms and arguably lower standards of proof under EU merger control. The OCCP’s strikingly hypothetical and inadequately supported theory of harm should therefore be justifiably criticised as not providing a solid basis for the prohibition decision in Agora/Eurozet. Having prohibited Agora/Eurozet based on a low standard of proof, an unconditional authorisation of PKN Orlen/PP by the OCCP was rather curious from a legal standpoint. One of the core criticisms, also voiced by the Polish Ombudsman, related to the lack of a comprehensive scrutiny of post-transaction market scenarios and possible harms.33 In particular, the OCCP did not reflect on the possible impact of the transaction on the quality of information and press outlets, focusing instead on the advertising dimension only. Therefore, as the Ombudsman rightly claimed, the OCCP fully disregarded the core functions of a free press, which is to provide critical and reliable information as well as to promote freedom of speech. By defining the relevant markets in a very narrow way, the OCCP was for example not required to evaluate how the fact that PKN Orlen is state-controlled would affect media independence. Relatedly, a number of state-controlled companies are already active in the Polish national, regional, and local media markets, triggering questions about the level of concentration following the entry into market of yet another firm over which the state has de facto corporate control.34 Such a post-transaction analysis would contribute to creating a more comprehensive market picture, but is largely missing, leaving the impression that the OCCP relied on a market definition-related shortcut not to engage in a more elaborate assessment, which could arguably have led to a different merger outcome.35 B. Media pluralism and independence in competition assessments From a broader perspective, the values of media pluralism and independence, which were clearly at risk in both merger decisions, have been relegated to a secondary role, or even completely dismissed, by the Polish competition authority. In PKN Orlen/PP, the OCCP explicitly rejected the view that concerns about media independence and plurality might be part and parcel of competition assessments. As the authority argued, its legal analysis focused only on how the planned acquisition affects competition, and that concerns about other non-competition values—e.g. media independence or pluralism that were clearly at stake given that PKN Orlen is state-controlled—fall outside of the scope of the authority’s competence.36 In a separate comment, the President of the OCCP expressed that the only ground based on which the transaction can be evaluated under the Polish law is ‘a significant restriction of competition, assessed on the basis of clearly determined and measurable economic criteria’.37 Such statements echo the view that non-economic values should be treated as distinct and falling outside of the scope of competition law. This view, however, is contestable and indeed largely contested by many,38 increasingly also by the Commission. It has indeed been argued in various contexts—from privacy protection to sustainability to democracy39—that competition law should not remain an isolated legal instrument detached from other Treaty provisions, but rather promote other constitutionally protected objectives. The EU Merger Regulation (the EUMR) acknowledges that inconsistencies might arise between media plurality on the one hand, and more traditional competition assessment parameters on the other one.40 Article 21(4) EUMR, which remains largely unused, states that if a media concentration is cleared by the Commission, ‘Member States may take appropriate measures to protect legitimate interests other than those taken into consideration by this Regulation and compatible with the general principles and other provisions of Community law,’ such as public security, media plurality, and prudential rules. Another, yet related, question arising for competition legal doctrine is to what extent antitrust and merger analyses could more positively and actively consider media pluralism at the assessment stage. The EU merger control regime currently leaves the media-related values largely outside the scope of the analysis under competition law. Under EU law, however, Article 167(4) TFEU indicates that ‘the Union shall take cultural aspects into account in its actions under provisions of the Treaties, in particular in order to respect and to promote the diversity of its cultures’. As also argued by scholars, economic considerations are almost impossible to isolate from the media’s social, cultural, and political functions.41 Article 167(4) TFEU, in connection with Article 7 TFEU that requires consistency and coherence among the EU’s policies,42 might therefore be interpreted as relevant also for competition enforcement, implying that media pluralism should be balanced against other competition objectives wherever such concerns arise in competition enforcement. The same logic could be transposed to the national level, as media pluralism often finds its expression in national constitutional provisions. Integrating such a non-economic value into a competition review would signal a desirable development of the competition doctrine and enforcement. It could, however, also carry the risk of arbitrary and opportunistic decision-making.43 While the latter would indeed not be desirable, the opposite—disregarding media pluralism and claiming it does not fall under the scope of competition assessments—might be used in an equally opportunistic manner.44 The minimum reflection on broader repercussions of a merger that visibly affects the media landscape would not only contribute to the legitimacy of the OCCP’s decision, but also demonstrate respect towards other democratic institutions, including the Ombudsman office, that attempted to engage in a dialogue with the competition authority in the course of the PKN Orlen/PP merger review.45 A comprehensive scrutiny of the merger’s impact on media pluralism and independence might have also prevented the allegations about instrumentalising merger control for realising media-related political objectives, in particular as prior to the transaction the members of the government invoked German-owned PP as an example of a media company that needs to be ‘repolonised’.46 As regards Agora/Eurozet, following the announcement of the acquisition plans, pro-government politicians openly referred to the transaction as ‘anti-Christian’, contributing to ‘the indoctrination’ and ‘a block on the truth’.47 This political discourse, combined with the fact that Agora’s editorial lines openly clash with the information agenda promoted by the ruling party, triggers indeed legitimate concerns about how the OCCP’s prohibition decision would affect media plurality going forward. Flawed and incomprehensive legal assessments based on an inadequate standard of proof in a sector that is highly important for a properly functioning democracy deserve attention and should not be replicated in the future decision-making. IV. Conclusions Judged through the lens of media pluralism and freedom, but also that of the quality of the competition assessments, the two merger decisions are questionable models of legal analyses. Instead, they seem to square rather well with a broader controversial agenda of the Polish government to gradually nationalise media outlets and exert a greater influence over their editorial policies. Focusing on the legal side, procedural and substantive shortcomings identified in both decisions deserve attention. Although the ultimate outcome of both merger decisions can still be overturned following the judicial review by the Court of Competition and Consumer Protection, judges in Poland face significant pressures and the judicial system is undergoing reforms, hence its impartiality cannot be taken for granted. Furthermore, as the decisions demonstrate, the questions of media pluralism and independence intersect with competition-related issues in complex and sensitive ways, and should be more thoroughly taken into account in the legal analysis to ensure a higher legitimacy of competition decisions. The question that remains open is the following: if it is evidenced that a merger decision taken by a formally independent competition enforcer shapes the national media landscape in a way that puts media pluralism and independence at risk—and is potentially in line with a broader political agenda—should the EU react, and if yes, how? As Poland is not an isolated national case where the rule of law and competition enforcement intertwine,48 the pertinence of enlarging the EU’s scope for intervention becomes evident. And yet, available avenues for action on the EU level seem to be rather limited. Investigating the cases and activating the Article 7 TFEU rule of law proceedings by the Commission for the breach of media standards is one alternative. However, the evident lack of success of this mechanism in the area of judicial independence in Poland is not encouraging, and political sensitivities around it do not bode well. Another option would be to empower the Commission to react to media distortions already at an early stage by strengthening the Rule of Law Framework or through the European Democracy Action Plan.49 Any attempts to grant the Commission new powers in the area where the Member States have thus far had predominant competence would not, however, be a well-received strategy. The third, and likely most realistic alternative, would be to critically scrutinise the implementation on the national level of the Directive to empower the competition authorities (ECN+ Directive), which requires to put forward rules to better guarantee the independence of national enforcers.50 The substantive and procedural shortcomings of both merger decisions, as described above, have in fact triggered a broader concern about the independence of competition enforcement in Poland.51 The Impact Assessment accompanying the ECN+ Directive indicates that ‘a genuine risk of influence by other state bodies exists where state-owned companies or activities by state bodies are subject of an investigation by the NCA or where its enforcement would interfere with other public interests’.52 As authorities’ independence is a fundamental pillar of any competition system that aims to impartially satisfy the needs of consumers and ensure well-functioning markets, signs of deviation and politically motivated distortions of the system must be detected and properly addressed through available EU legal mechanisms. Finally, evident intersections between competition enforcement and media quality, as well as the need to mitigate potential risks of arbitrary decision-making, point to an urgent need to develop a harmonised guidance and assessment techniques for incorporating media-related values into competition law analysis. This is in particular so as the doctrinal discussion on the appropriate scope of competition law is increasingly tilting in favour of a more encompassing system that better reflects not only on economic harms caused by competitive distortions, but also on their impacts on privacy, sustainability, democracy, as well as media pluralism and freedom. Footnotes 1 Commission, ‘Rule of Law: European Commission refers Poland to the European Court of Justice to protect independence of Polish judges and asks for interim measures’ IP/21/1524 (Brussels, 31 March 2021). For a general discussion on the rule of law in the EU, see, for example, Christophe Hillion, ‘Overseeing the Rule of Law in the EU’, in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press 2016), Laurent Pech, ‘“A Union Founded on the Rule of Law”: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law’ (2010) 6 European Constitutional Law Review 359. 2 Commission, ‘Rule of Law: European Commission acts to defend judicial independence in Poland’ IP/17/5367 (Brussels, 20 December 2017); Commission Rule of Law Report 2020 (Brussels, 30 September 2020); see also, Commission, ‘A New EU Framework to Strengthen the Rule of Law’ COM 158 Final (Brussels, 11 March 2014). 3 ‘Poland’s ruling party may clobber independent media’ The Economist (Berlin, 10 October 2020). 4 See, for example, International Press Institute, ‘Democracy Declining: Erosion of Media Freedom in Poland’ (November–December 2020); Jan Cienski, ‘Polish media veers back to pre-1989’ Politico (Warsaw, 11 July 2016); Claudia Ciobanu, ‘Polish Government’s Assault on the Free Media: “Death by a Thousand Cuts”’ BalkanInsight (15 February 2021). 5 Reporters Without Borders, ‘2021 World Press Freedom Index’ (2020): The report indicates that the level of risk as regards political independence of media is particularly high (79 per cent), which stems primarily from the independence of governance and funding (83 per cent risk). 6 See, for example, Case C-288/89 Stichting Collectieve Antennevoorziening, EU:C:1991:323, para 23–29; Case C-353/89 Commission of the European Communities v Kingdom of the Netherlands, EU:C:1991:325, para 30. Media pluralism is also one of the key pillars of the right to information and freedom of expression enshrined in Article 11 of the Charter of Fundamental Rights and in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. 7 Constitution of the Republic of Poland (1997), Articles 14 and 54. 8 Office for Competition and Consumer Protection, Decision No. DKK-1/2021 (7 January 2021). 9 Office for Competition and Consumer Protection, Decision No. DKK-34/2021 (5 February 2021). 10 Commission, ‘2020 Rule of Law Report’ (Communication) COM (2020) 580 final. 11 See, for example, Kati J. Cseres, ‘Rule of Law Challenges and the Enforcement of EU Competition Law. A Case-Study of Hungary and its Implications for EU Law’ (2019) 14 Competition Law Review 75. 12 Office for Competition and Consumer Protection, Decision No. DKK-1/2021 (7 January 2021), 32–35. 13 Ibid, 33. 14 Ibid, 33–34. 15 Agora, ‘Briefing Paper for the European Commission on the Decision of the Polish Competition Authority to Unjustifiably Prohibit the Concentration Between Agora and RadioZet’ (25 March 2021), 1. The present author has obtained the Brief from Agora upon request. See also, Javier Espinoza and James Shotter, ‘Brussels urged to intervene in Poland media takeover row’ Financial Times (27 April 2021). 16 Agora, ‘Statement of the Management Board of Agora S.A. on the Appeal Against the Decision of the President of the Office of Competition and Consumer Protection’ (8 February 2021), available at https://www.agora.pl/en/statement-of-the-management-board-of-agora-s-a-on-the-appeal-against-the-decision-of-the-president-of-the-office-of-competition-and-consumer-protection. 17 PKN Orlen, ‘PKN Orlen to take over Polska Press’ (8 December 2020), available at https://www.orlen.pl/EN/News/Pages/PKN-ORLEN-to-take-over-Polska-Press.aspx. 18 Office for Competition and Consumer Protection, Decision No. DKK-34/2021 (5 February 2021), 6. 19 Ibid, 7–11. 20 Ibid, 19. 21 Appeal by the Ombudsman against the Decision of the President of the Office for Competition and Consumer Protection NO DKK-34/2021 of 5 February 2021 (5 March 2021). 22 Media Freedom Rapid Response, ‘Poland: PKN Orlen media purchase violates EU merger rules and media pluralism standards’ (14 June 2021), available at https://www.ecpmf.eu/poland-pkn-orlen-media-purchase-violates-eu-merger-rules-and-media-pluralism-standards/. 23 Statement of the President of the Office of Competition and Consumer Protection Regarding the Decision of the Court of Competition and Consumer Protection on the Case of PKN Orlen/Polska Press (13 April 2021). 24 European Centre for Press & Media Freedom, ‘Poland: PKN Orlen media purchase violates EU merger rules and media pluralism standards’ (14 June 2021), available at https://www.ecpmf.eu/poland-pkn-orlen-media-purchase-violates-eu-merger-rules-and-media-pluralism-standards/. 25 For the sake of comparison, the average time of the merger review proceedings in 2016 lasted on average 38 days: Marek Martyniszyn and Maciej Bernatt, ‘Implementing a competition law system—Three Decades of Polish Experience’ (2020) 8 Journal of Antitrust Enforcement 165, 37. 26 Agora (n 15), 1. 27 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings [2004] OJ L24/1, Recital 25. 28 Agora (n 15). 29 Case T-399/16 CK Telecoms UK Investments Ltd v Commission EU:T:2020:217. See also earlier decisions by the Court of Justice that relate to the standard of proof, e.g. Case C-12/03 P, Commission v Tetra Laval BV EU:C:2005:87, upheld by Case C-12/03 P Commission v Tetra Laval BV EU:C:2005:87; Case T-310/01 Schneider Electric SA v Commission EU:T:2002:254. 30 CK Telecoms (n 29), para 118. 31 Kyriakos Fountoukakos and Camille Puech-Baron, ‘Towards a Higher Standard of Proof and a More Interventionist Judicial Review in Antitrust Cases Involving Complex (Economic) Assessments Following CK Telecoms? (2020) 11 Journal of European Competition Law and Practice, 464. 32 CK Telecoms (n 29), para 118. 33 Ombudsman (n 21). 34 Ombudsman (n 21), 12. 35 The PKN Orlen/PP decision can be usefully juxtaposed against the decision regarding the acquisition by Polska Grupa Energetyczna of Energa S.A.—both being state-owned firms producing, distributing and trading electric energy—taken by OCCP’s President Małgorzata Krasnodębska-Tomkiel in 2011. Although the OCCP was heavily pressured by the Tusk government to clear the merger, which was supposed to contribute to the realisation of the government’s flagship energy project, the OCCP blocked the transaction—a strong sign of the OCCP’s independence. See, for example, Martyniszyn and Bernatt (n 25); Robert Gago and Ewa Tabor, ‘The Polish Competition Authority Prohibits a Merger in the Energy Sector (PGE/Energa)’ (2011) Concurrences, Art. 34262. 36 Office for Competition and Consumer Protection, Decision No. DKK-34/2021 (5 February 2021), 21. 37 PKN Orlen, ‘Orlen/Polska Press—UOKiK President’s approval’ (5 February 2021), available at https://www.uokik.gov.pl/news.php?news_id=17202. 38 See, for example, Ariel Ezrachi, ‘Sponge’ (2017) 5 Journal of Antitrust Enforcement 49; Ioannis Lianos, ‘Polycentric Competition Law’ (2019) 71 Current Legal Problems 161; Ioannis Lianos, ‘Competition Law as a Form of Social Regulation’ (2020) 65 Antitrust Bulletin 3; Oles Andriychuk, The Normative Foundations of Competition Law: Assessing the Goals of Antitrust through the Lens of Legal Philosophy (Edward Elgar, 2017). 39 See, for example, Julian Nowag, Environmental Integration in Competition and Free-Movement Laws (Oxford University Press, 2016); Suzanne Kingston, Greening EU Competition Law and Policy (Cambridge University Press, 2011); Klaudia Majcher and Viktoria H.S.E. Robertson, ‘The Twin Transition to a Digital and Green Economy: Doctrinal Challenges for EU Competition Law’ SSRN (2021); Harri Kalimo and Klaudia Majcher, ‘The Concept of Fairness: Linking EU Competition and Data Protection law in the Digital Marketplace’ (2017) 42 European Law Review 210. 40 EU Merger Regulation (n 27). 41 Konstantina Bania, The Role of Media Pluralism in the Enforcement of EU Competition Law (Concurrences 2019), 5. 42 Majcher and Robertson (n 39). 43 Bania (n 41), 25. 44 See, for example, Articles 8, 9(3) and 13 of Austrian CartelAct. 45 It is worthy to highlight that in April 2021, Poland’s Constitutional Court controlled by the Law and Justice party decided to remove Adam Bodnar, the Ombudsman who intervened in this case, from office. See for example, ‘Impasse deepens in Poland over new ombudsman’ Euractiv (Brussels, 14 May 2021), available at https://www.euractiv.com/section/justice-home-affairs/news/impasse-deepens-in-poland-over-new-ombudsman/; Łukasz Woźnicki, ‘Poland’s Constitutional Court Rules to Remove the Ombudsman Adam Bodnar from Office’ Gazeta Wyborcza (Warsaw, 15 April 2021), available at https://wyborcza.pl/7,173236,26983417,poland-s-constitutional-court-rules-to-remove-the-ombudsman.html. 46 The Economist (n 3). 47 Agora (n 15), 1. 48 For a comprehensive discussion on the rule of law and competition law in Hungary, see Cseres (n 11). 49 International Press Institute, ‘European Union must act on media freedom in Poland, Hungary and Slovenia’ (9 March 2021), available at https://ipi.media/european-union-must-act-on-media-freedom-in-poland-hungary-and-slovenia/. 50 Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market [2019] OJ L11/3 (ECN+ Directive). 51 Existing concerns about the independence of the Polish competition authority include the fact that its President is appointed by a Prime Minister, and the latter supervises the OCCP’s activities. For a broader discussion on independence of competition authorities, see Wouter P.J. Wils, ‘Independence of Competition Authorities: The Example of the EU and Its Member States’ (2019) 42 World Competition 149. 52 Competition Staff Working Document, Impact Assessment accompanying the Proposal for a Directive of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market SWD(2017)114 (22 March 2017) Part 1/2, 26. © The Author(s) 2022. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Media Pluralism and Independence: Legal Assessments of the Agora/Eurozet and PKN Orlen/Polska Press Transactions (Poland)
JF - Journal of European Competition Law & Practice
DO - 10.1093/jeclap/lpab090
DA - 2022-01-15
UR - https://www.deepdyve.com/lp/oxford-university-press/media-pluralism-and-independence-legal-assessments-of-the-agora-fqMoCDpIs5
SP - 419
EP - 425
VL - 13
IS - 6
DP - DeepDyve
ER -