The President of UOKiK decided that Polkomtel, Polska Telefonia Cyfrowa, PTK Centertel and P4 concluded an unlawful and competition-restricting agreement. The operators agreed on their conduct towards the wholesale operator of mobile television. Unlawful practices caused a delay in the development of new services on Polish market. The Office ordered to discontinue the practice and imposed on all cartel participants fines exceeding PLN 113 mln

In 2009 the Office of Electronic Communications determined the bid result concerning the reservation of frequency which would enable inter alia the TV digital video broadcasting via a mobile phone (DVB-H). There were two entities participating in the procedure - Info-TV-FM and consortum Mobile TV, intentionally formed for this occasion by four mobile network operators (Polkomtel, Polska Telefonia Cyfrowa, PTK Centertel and P4). The reservation of frequency was granted to Info-TV-FM. Rendering services to indivdual consumers at a large scale entailed signing agreements with mobile telephony operators. The Office observed disturbing signals of market behaviours among operators who failed to win the tender and this raised its concern. Consequently, in September last year the President of UOKiK instituted the antimonopoly proceedings concerning the alleged unlawful agreement concluded between the four mobile operators.

- Basing on the data collected we decided that the largest mobile operators, who failed to win the tender for granting frequencies, concluded the unlawful agreement. Participants of the cartel agreed their behaviour towards the tender winner, were exchanging confidential information and were settling the way of questioning the winner’s bid in public – explains the President of the Office, Małgorzata Krasnodębska-Tomkiel.

As a result of conducted proceedings and the inspection with search performed in undertakings’ premises, the Office managed to collect considerable evidence. Moreover, the Office examined the information placed by the operators inter alia in the media, on Internet portals and blogs. Based on the acquired documentation, the Office determined that the participants of the consortium formed especially for the tender, agreed on their actions towards the bid winner right after failing to win the tender. The operators assessed in cooperation the financial and business conditions included in the selected offer. Furthermore, they agreed on PR actions aiming at questioning in public the validity and reliability of the Info-TV-FM bid. Such behaviours of competitors resulted in impeding the mechanism of effective competition. They also restricted the operators’ uncertainty regarding the evaluatuation of Info-TV-FM bid by each and every tender participant as well as limited starting individual cooperation. This unlawful agreement lasted over two and a half year and ceased the development of DVB-H wholesale TV market. Additionally, consumers lost the opportunity to enjoy mobile TV services on the phone.

Arrangements were made during numerous meetings of high-ranking personnel, including mainly representatives of operators in the board of directors and supervisors of the consortium, with the participation of chairmen. Still, participants of the agreement realized that their conduct was unlawful – when exchanging their internal e-correspondence, workers of one of these operators informed one another that other parties of the collusion were fully aware of the antimonopoly risk they exposed themselves to.

All participants of the cartel were ordered to cease the practice and imposed financial penalties exceeding in total PLN 113 mln. For the participation in unlawful agreement the fines will be imposed respectively: Polkomtel (PLN 33,4 mln), Polska Telefonia Cyfrowa (PLN 34 mln), Polska Telefonia Komórkowa Centertel (PLN 35 mln) and P4 (PLN 10,7 mln).

The already completed proceedings were conducted also on the basis of provisions of the Treaty on the Functioning of the European Union with regard to the prohibition of competition-restricting agreements. Moreover, the final ruling was consulted with the European Commission. The collected evidence revealed that the practice applied by the operators could have affected the trade between the EU Member States.

The decision is not final. Undertakings can lodge an appeal to the Court of Competition and Consumer Protection.

At the same time it is worth noting that the maximum financial sanction for participating in competition-restricting agreement amounts to 10% of undertaking's revenue obtained in the year preceding the issuance of the decision. Participants of a collusion who want to avoid severe penalty may take advantage of the leniency programme. The undertaking who provides useful evidence for proving the existence of the practice, was not the agreement’s initiator and did not induce other enterprises to prohibited actions, may expect to be granted full immunity from the fine. The application in this respect can be submitted in person at the seat of the Office of Competition and Consumer Protection in Warszawa, to the employee of UOKiK for official record, by mail, faks or email: leniency@uokik.gov.pl.  Answers to all questions regarding the programme are provided by UOKiK’s  lawyers under the telephone number: +48 22 55 60 555.

Additional information for the media:
Małgorzata Cieloch, Spokesperson for UOKiK
Department of International Relations and Communication
Pl. Powstańców Warszawy 1, 00-950 Warszawa
Tel. +48 22 827 28 92, 55 60 106, 55 60 430
faks +48 22 826 11 86
E-mail malgorzata.cieloch@uokik.gov.pl