Shall selective, above-cost price cutting in the newspaper market be qualified as anticompetitive exclusion? Case comment to the judgement of the Supreme Court of 19 August 2009 – Marquard Media Polska (Ref. No. III SK 5/09)

Michał Mijal

The selective, limited to the territory of the Silesia province only, application by Marquard Media Polska of very low retail prices for its sports newspaper entitled ‘Przegląd Sportowy’ (1 złoty) was found as anticompetitive by the President of the Polish Office of Competition and Consumer Protection (hereafter, UOKiK) in a decision of 2 June 2006 (RKT-35/2006). Such conduct constituted in the opinion of UOKiK an abuse of a dominant position in the form of: the imposition of unfair prices, counteracting the creation of conditions necessary for the emergence or development of competition and market sharing (Article 8(2)(1) and (5) and (7) of the Act of 15 December 2000 on Competition and Consumer Protection; the same forms of abuses are listed under the current Act of 16 July 2007 on Competition and Consumer Protection. Marquard Media was ordered to refrain from the said practice and was fined a total of 1 972 600 złoty (approx. 500 000 euro).