October 21, 2021

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Orlin: Ombudsman's appeal regarding approval to buy Polska Press . must be dismissed

Orlin: Ombudsman’s appeal regarding approval to buy Polska Press . must be dismissed

In response to the court, Orlen assessed that the Ombudsman’s appeal against the decision of the Head of the Office of Competition and Consumer Protection regarding the approval of the control of the Polska Press by PKN Orlen is completely unfounded and should be dismissed. He also added, even while recognizing the admissibility of the Ombudsman’s appeal, the court must reject it.

“Applicable law does not provide for a complaint against a decision granting consent to focus – all its structures have been built on this premise. This should lead to the conclusion that the defender also does not have the legitimacy to challenge the decision to grant consent, because the power of the defender (.. .) does not include the initiation of proceedings not provided for by applicable law” – indicated in this letter, reached by PAP on Wednesday.

PKN Orlen is represented by attorney Paweł Podrecki and Prof. of the Institute of Legal Sciences of the Polish Academy of Sciences wrote that “the allegations raised on the appeal are, in the opinion of PKN Orlen, so clearly unfounded that the appeal may not be effective; it should also be noted that in this case of an unfounded situation Quite ordinary, not only because of the arguments presented in the appeal. ”

“It should be noted that this is perhaps the only case in the history of the Polish antimonopoly authority in which the decision to grant approval for concentration is called into question” – it was indicated in the letter responding to the appeal of the ombudsman. She added that “this situation was not taken into account by the legislator at all” and “it is clear that the parties to the concentration who have obtained unconditional consent because they will not appeal the decision of the head of the office.”

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According to the concern, “the presumption that a decision granting consent to focus can be appealed by a third party in a situation where the nature of the decision shows that, upon approval, the focus produces legal effects, leads to consequences that are difficult to accept.” “This means the emergence of uncertainty and the consequences of a possible rescission or modification of the decision that are difficult to imagine even in a normative way. These are the effects that the legislator wanted to avoid by deciding that no other entity, apart from the participants in the focus, might be a party to the court proceedings, and therefore It may not be appealed ”- the letter announces.

In the opinion of Orlin’s attorney, “It would not be an exaggeration to say that no concentration in Poland, including in the media market, has been evaluated in the manner suggested by the defender in justifying the appeal.” “It can be concluded from this that, based on + traditionally + standards applied in competition law, the contested decision does not raise any objections, and a decision with a different content cannot be issued” – the assessment was made.

However, even – as I add – if the court finds the ombudsman’s appeal formally admissible, it is “totally dismissed”. “There is no legally compelling argument that would allow us to presume that the issue of media pluralism falls within the scope of the concept of competition examined by the Head of the Office of Competition and Consumer Protection in relation to focus notifications” – emphasized in the concern response.

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“The head of the UOKiK does not have the competence, including objectivity, to assess the effect of focusing on models of pluralism of various forms. He does not have a research apparatus that can be used, for example, to study the diversity of opinions, the representation of opinions, the division of these opinions into political, social, cultural, etc. That. Studying + pluralism + in this way will lead either to complete imagination or to complete arbitrariness” – argues Orlin in his answer.

Therefore – according to Orlin – “The contested decision is the correct and only decision that can be made under the provisions of competition and consumer law.”

On March 5, 2021, it was reported that the Ombudsman appealed to the Court of Competition and Consumer Protection against the decision of the Head of the Office of Competition and Consumer Protection regarding the approval of the focus of the control of Polska Press by PKN. Orlin. The head of UOKiK approved the takeover of Polska Press by PKN Orlen at the beginning of February this year. In his appeal, the human rights commissioner wants the court to revoke the approval of the UOKiK chief.

In the context of freedom of expression, we sometimes forget that it is not only what we can advertise, but also what – as citizens – we can get, and what information we can get. I think these issues should be taken into account. (…) This is a deeper-bottom treatment – Ombudsman Adam Bodnar said in the context of this appeal.

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In addition – in a separate request – the Commissioner for Human Rights also wanted the Court to suspend implementation of the decision expressing approval of the PKN Orlen takeover of Polska Press until the main appeal is resolved. The court considered this separate application on April 8 of this year. The implementation of the decision of the head of UOKiK was suspended.

In turn, the president of PKN Orlen, Daniel Obajtek, announced after the decision was made that “the acquisition of Polska Press shares is effective on March 1, 2021, that is, before the court issues the ruling.” – He added that the court’s decision is pointless and has no effect on our actions or the effectiveness of the acquisition of this entity.

At the end of April this year. The Competition and Consumer Protection Court decided that it would hear the appeal submitted by the Ombudsman against the decision of the Head of the Competition and Consumer Protection Office. So far, no specific date has been set for consideration of this case.