The 12 May ruling gives clearance to the transaction between two Polish radio groups: Agora SA and Grupa Eurozet, which was blocked by the Polish NCA (UOKiK) in January 2021. The ruling is the first reversal of a merger decision by UOKiK , at least since the country joined the EU.

A Positive Competition team led by Aleksandra Boutin assisted Agora SA and Greenberg Traurig, LLP both during the review by the regulator and during the appeal process.

The Court found that UOKiK did not present an internally coherent theory of harm and that the regulator’s concerns were „speculative” and not based on the facts of the case. The evidence examined by the court did not show that the creation of a ”duopoly-like structure” was likely to lead to a SIEC by altering market conditions in a way that would significantly increase the risk of tacit collusion or the marginalisation of other competitors.

The ruling is a major setback to UOKiK whose merger decisions are rarely reviewed by an independent court.
Although Agora SA’s acquisition of Grupa Eurozet was the first merger blocked by UOKiK since 2011, the number of deals that raise the regulator’s concerns is quite high –last year alone, 13 cases went to phase 2 and remedies were imposed in 4 cases. The recent ruling may discourage the future notifying parties from making concessions to UOKiK if its concerns are not supported by solid economic evidence. The regulator, who intends to challenge the decision, will probably have to reconsider its approach to the use of such evidence in merger assessment.

The judgement has more general implications as it takes place in the context where jurisprudence in Europe, and the Cour de justice de l’Union européenne itself (e.g. Hutchison, Intel, etc.), has recently sent clear signals that the margin of discretion of antitrust authorities in complex economic matters is narrowing. Parties should factor this in when settling or offering remedies when they believe that they have good economic arguments that are not heard by enforcers. Courts have sent clear signals that these strong economic arguments are more likely to be heard than most people thought until recently.