Standpoint of President of UOKiK
  • Standpoint of President of UOKiK in conjunction with the information concerning the activities of the Public Prosecutor’s Office in response to the notification pertaining to, among others, exceeding the powers and non-performance of duties by public officials in the case of Orlen-Lotos merger.

In connection with media reports published today that the Public Prosecutor's Office has instigated a preliminary investigation into, among other things, the possibility that public officials may have exceeded their powers, the President of the Office points out that due to the Community dimension of the concentration, the approval for acquisition by Orlen of control over Lotos Group was granted by the European Commission on July 14, 2020.

In its decision, the Commission specified the conditions for the acquisition of control, i.e. the assets to be divested and the boundary conditions for the investors who were to acquire the assets. Due to the Community dimension of the concentration, it was the European Commission that evaluated the transaction. Moreover, the European Commission has verified and approved Saudi Aramco as an investor acquiring Lotos Group assets covered by the condition set forth in the aforementioned concentration decision.

The sale, by Orlen, of the assets of Lotos Group and the consequent investment control and concentration control proceedings conducted by President of UOKiK was thus a consequence of the European Commission's decision of July 14, 2020, in which the authority approved the acquisition of control by Orlen over Lotos Group.

Under a separate procedure stipulated in the Act on Control of Certain Investments, President of UOKIK assesses only whether the notified investment poses a threat to public order, public safety, public health or projects or programs of EU interest. As far as the claims that President of UOKiK should have sought an opinion of the Consultative Committee referred to in Article 13 of the Act on the Control of Certain Investments before issuing the aforementioned decision are concerned, we would like to point out that President of UOKiK did not have, and still does not have, a legal basis for requesting such an opinion from the Consultative Committee.

Article 10 of the Act on Control of Certain Investments, which provides for the obligation to request recommendations from the Consultative Committee, refers only to decisions issued under Article 9(5), Article 11, or Article 12(6) of the Act on Control of Certain Investments by the Minister of State Assets, the Minister of Defense, and the Minister in charge of economic affairs. In contrast, the powers of President of UOKiK in investment control matters have been comprehensively regulated in Articles 12 a - 12 k of the same Act. The regulations do not provide for a procedure for President of UOKiK to consult the Committee. According to the principle of legalism, public administration bodies act on the basis of the law.

In addition, we point out that this transaction has already been of interest to the Public Prosecutor's Office and the Supreme Audit Institution. In February 2023, President of UOKiK provided all the information requested by the Public Prosecutor's Office and cooperated with the Supreme Audit Institution in its inspection activities, including providing access to investigation files.

Also at present, President of UOKiK declares its openness to fully cooperate with authorized bodies to clarify any doubts on the matter, as has been the case so far.