Notification of foreign joint ventures: Another change in the UOKiK guidance on extraterritoriality
On 2 April 2025, the Office of Competition and Consumer Protection (UOKiK) published another update of the guidelines on the criteria and procedure for notification of intended concentrations. This time UOKiK clarified its interpretation of the “effects doctrine” (extraterritoriality principle) regarding joint ventures. As indicated in the communication from UOKiK, the aim is to reduce the number of foreign concentrations notified to the Polish competition authority.
Recent changes in UOKiK’s approach to notification of foreign joint ventures
In October 2024, UOKiK introduced a significant modification to the extraterritoriality principle concerning concentrations involving formation of a joint venture.
Under the effects doctrine, concentrations executed outside Poland which may actually or potentially produce effects in Poland are also subject to notification to UOKiK (when all the other conditions are met).
The guidance issued at the end of 2024 modified this rule, indicating that even if any of the groups of entities forming a joint venture has annual turnover exceeding EUR 10 million in Poland, this does not necessarily mean that the activities of the joint venture will cause even potential effects in Poland, and thus be subject to mandatory notification.
UOKiK pointed out that in light of the peculiarities of such concentrations, when assessing the exertion of effects in Poland, the subject and scope of the activity of the joint venture should also be taken into account, namely whether this activity will affect any part of Poland (in the relevant product market and geographic market). At that time, UOKiK advised that if the markets on which the newly created business will operate, and the markets on which vertical links (supplier-customer) will exist between the new entity and its founders, will not include all or part of Poland, then the condition for notification of exerting effects in Poland will not be met.
Recent clarification—what’s new?
The revision concerns only the previous guidance on the lack of effects in Poland in the case of a joint venture not operating within Poland. Under the new guidance, an extraterritorial joint venture will also be deemed not to have effects in Poland when the newly created entity does not plan to undertake any activity covering Poland in the three years following the effective date of the concentration.
Importantly, when evaluating extraterritorial joint ventures, it is not the activities conducted in Poland as such that should be taken into account, but the activities within the relevant markets covering Poland or part of its territory (in the case of local or regional markets).
As with the earlier revision, UOKiK points out that the purpose of the amendment is to adapt the guidance and the regulator’s actions to reflect the current market situation and to further limit the number of notifiable concentrations to those with real effects in Poland.
Practical guidance
In light of UOKiK’s current guidance, it is worth summarising the interpretation on the lack of impact in Poland of a joint-venture concentration.
In my view, establishment of a joint venture abroad will not be notifiable to UOKiK (due to the lack of effects in Poland) if the following conditions are all met:
- Once established, the foreign joint-venture company will not conduct any activity in Poland
- The relevant market where the foreign JV company will be active outside Poland should extend to at most a national market (e.g. covering France or China) or a market covering several countries (or regions) that do not include Poland (e.g. the Benelux countries)—the point is that it cannot be a more broadly defined geographic market that would include Poland, such as the European Economic Area market or the world market
- Similarly, the markets in which there will be vertical ties (supplier-customer) between the foreign JV company and its founders will not involve a market covering all or part of Poland
—and also, in the next three years, the foreign JV company does not plan to expand its activity into a market covering all or part of Poland.
Evidently, under the 2024 revision and now the 2025 revision, when applying the guidance to assessment of the obligation to notify the formation of a foreign joint venture to UOKiK, whether it will have effects in Poland will ultimately be determined by the regulator’s decision-making practice and the market definitions it applies.
Thus we should note with satisfaction the possibility announced by UOKiK in its communication to consult with the office’s staff on the obligation to notify concentrations.
We are now looking forward to steps by the president of UOKiK towards liberalising the provisions on review of concentrations that will be negligible for purposes of protecting competition in Poland. The time has come not only for changes in the guidelines, but also for revising upwards the notification thresholds for concentrations, and perhaps statutory clarification of the effects doctrine for control of extraterritorial concentrations. But that would require legislative changes.
Andrzej Madała, Competition & Consumer Protection practice, Wardyński & Partners
