25.5.2021

Official Journal of the European Union

C 196/3

Opinion of the Advisory Committee on mergers at its meeting of 2 July 2020 concerning a preliminary draft decision relating to Case M.9014 — PKN Orlen/Grupa Lotos

Rapporteur: Belgium

(2021/C 196/03)

Transaction

The Advisory Committee (11 Member States) agrees with the Commission that the Transaction constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation.

Union Dimension

The Advisory Committee (11 Member States) agrees with the Commission that the Transaction has a Union dimension pursuant to Article 1(2) of the Merger Regulation.

Product Markets

The Advisory Committee (11 Member States) agrees with the Commission’s definitions of the relevant product markets, and in particular that:

3.1.	there is a single wholesale market for the supply of diesel, gasoline and LHO in Poland, with no segmentation between ex-refinery and non-retail sales;

3.2.	the market for the wholesale supply of fuels should be segmented by fuel (i.e. between diesel, gasoline, LHO and jet fuel);

3.3.	the market for the supply of jet fuel excludes avgas, which constitutes a product market separate from jet fuel;

3.4.	the market for the supply of jet fuel should be segmented between ex-refinery supply of jet fuel and into-plane supply of jet fuel;

3.5.	the market for the into-plane supply of jet fuel should be segmented between supply by into-plane suppliers and throughputters on the one hand, and resellers on the other hand;

3.6.	there is an overall market for the retail supply of motor fuels (on-motorway sales constituting a segment) which can be further segmented between B2B sales and B2C sales;

3.7.	the supply of each different type of bitumen should be distinguished as distinct markets, i.e. the supply of standard bitumen, the supply of modified bitumen and the supply of industrial bitumen.

Geographic markets

The Advisory Committee (11 Member States) agrees with the Commission’s definitions of the relevant geographic markets for the wholesale supply of diesel, gasoline and LHO, namely that they are national in scope.

The Advisory Committee (11 Member States) agrees with the Commission’s definitions of the relevant geographic markets for the retail supply of motor fuels, namely that they are national in scope with local elements.

The Advisory Committee (11 Member States) agrees with the Commission’s definitions of the relevant geographic markets for the ex-refinery supply of jet fuel, namely that they are national in scope for supply to customers in Poland and either national or wider comprising an area including Czechia, Poland, Slovakia, Hungary and East-Germany for supply to customers in Czechia.

The Advisory Committee (11 Member States) agrees with the Commission’s definitions of the relevant geographic markets for the into-plane supply of jet fuel, namely that they are airport-wide.

The Advisory Committee (11 Member States) agrees with the Commission’s definitions of the relevant geographic markets for the supply of standard bitumen, the supply of modified bitumen and the supply of industrial bitumen, namely that they are national in scope.

Competitive Assessment

The Advisory Committee (11 Member States) agrees with the Commission’s assessment that the Transaction would significantly impede effective competition due to horizontal non-coordinated effects and/or due to vertical effects with regard to the following markets:

9.1.	markets for the wholesale supply of diesel, gasoline and LHO in Poland;

9.2.	the overall retail market for the supply of motor fuels (and the on-motorways segment) and the retail markets for the supply of motor fuels to B2C and B2B customers in Poland;

9.3.	the upstream and downstream markets for the wholesale supply of motor fuels (upstream) in Poland and for the retail supply of motor fuels (downstream) in Poland;

9.4.	the markets for the ex-refinery supply of jet fuel to customers in Poland and in Czechia;

9.5.	the market for the into-plane supply of jet fuel at all airports in Poland;

9.6.	the upstream and downstream markets for the ex-refinery supply of jet fuel to customers in Poland (upstream) and the into-plane supply at all airports in Poland (downstream);

9.7.	the upstream and downstream markets for the ex-refinery supply of jet fuel to customers in Czechia (upstream) and the into-plane supply at Prague airport (downstream);

9.8.	the markets for the supply of standard, modified and industrial bitumen in Poland.

10.

The Advisory Committee (11 Member States) agrees with the Commission’s assessment that the Transaction would not significantly impede effective competition further to the relation between the Parties’ activities in:

10.1.

the market for the supply of HFO in Poland (or wider);

10.2.

the market for the supply of car washes services;

10.3.

the ex-refinery supply of jet fuel to customers in Estonia (i.e. narrowest plausible market);

10.4.

the markets for the supply of the different types of bitumen outside Poland (1);

10.5.

the market for the supply of Group I base oils in the EEA;

10.6.

the market for the supply of mineral industrial and automotive lubricants in Poland;

10.7.

the market for bunkering services in Poland;

10.8.

the market for the supply of isomerate in Poland;

10.9.

the upstream and downstream markets for the supply of isomerate (upstream) and the wholesale supply of gasoline (downstream);

10.10.

the upstream and downstream markets for the supply of mandatory storage services (upstream) and the wholesale supply of fuels (downstream);

10.11.

the upstream and downstream markets for the supply of rail freight and transport services (upstream) and the wholesale supply of fuels and fuel-related products (downstream);

10.12.

the upstream and downstream markets for the exploration, development of crude oil and natural gas (upstream) and the wholesale supply of fuels and fuel-related products (downstream);

10.13.

the upstream and downstream markets for the supply of Heavy Fuel Oil in Poland (upstream) and for the generation of electricity and heat (downstream);

10.14.

the upstream and downstream markets for the supply of slack wax (upstream) and the supply of paraffin wax (downstream);

10.15.

the upstream and downstream markets for the supply of Group I base oils (upstream) and lubricants (downstream) in Poland;

10.16.

the upstream and downstream markets for the supply of Heavy Fuel Oil (upstream) and the supply of bunkering services (downstream);

10.17.

the upstream and downstream markets for the ex-refinery supply of marine gas oil (upstream) and the supply of bunkering services (downstream).

Commitments

11.

The Advisory Committee agrees with the Commission that the Final Commitments address the competition concerns in relation to the markets for:

11.1.

the wholesale supply of diesel, gasoline and LHO in Poland; (9 Member States voted in favour. 2 Member States abstained. No Member State voted against.)

11.2.

the retail supply of motor fuels in Poland (and the on-motorways segment); (9 Member States voted in favour. 2 Member States abstained. No Member State voted against.)

11.3.

the retail supply of motor fuels to B2C and B2B customers in Poland; (9 Member States voted in favour. 2 Member States abstained. No Member State voted against.)

11.4.

the wholesale supply of motor fuels in Poland (upstream) and the retail supply of motor fuels in Poland (downstream); (9 Member States voted in favour. 2 Member States abstained. No Member State voted against.)

11.5.

the ex-refinery supply of jet fuel to customers in Poland; (9 Member States voted in favour. 2 Member States abstained. No Member State voted against.)

11.6.

the ex-refinery supply of jet fuel to customers in Czechia; (9 Member States voted in favour. 2 Member States abstained. No Member State voted against.)

11.7.

the into-plane supply of jet fuel at all airports in Poland; (9 Member States voted in favour. 2 Member States abstained. No Member State voted against.)

11.8.

the ex-refinery supply of jet fuel to customers in Poland (upstream) and the into-plane supply at all airports in Poland (downstream); (9 Member States voted in favour. 2 Member States abstained. No Member State voted against.)

11.9.

the ex-refinery supply of jet fuel to customers in Czechia (upstream) and the into-plane supply at Prague airport (downstream); (9 Member States voted in favour. 2 Member States abstained. No Member State voted against.)

11.10.

the markets for the supply of standard, modified and industrial bitumen in Poland. (10 Member States voted in favour. 1 Member State abstained. No Member State voted against.)

12.

The Advisory Committee agrees with the Commission that, subject to full compliance with the Final Commitments, the Transaction would not significantly impede effective competition in the internal market or a substantial part of it. 9 Member States voted in favour. 2 Member States abstained. No Member State voted against.

Compatibility with the Internal Market

13.

The Advisory Committee (11 Member States) agrees with the Commission that the Transaction should therefore be declared compatible with the internal market and the EEA Agreement in accordance with Articles 2(2) and 8(2) of the Merger Regulation and Article 57 of the EEA Agreement. 9 Member States voted in favour. 2 Member States abstained. No Member State voted against.

(1) Markets for the supply of standard bitumen in Austria, Czechia, Estonia, Latvia, Lithuania, Romania and Slovakia, markets for the supply of modified bitumen in Latvia and Lithuania, and markets for the supply of industrial bitumen in Austria and Czechia.

25.5.2021

Official Journal of the European Union

C 196/6

Final Report of the Hearing Officer (1)

Case M.9014 — PKN Orlen/Grupa Lotos

(2021/C 196/04)

On 3 July 2019, the Commission received a notification of a proposed concentration by which Polski Koncern Naftowy ORLEN Spółka Akcyjna (‘Orlen’) would acquire, within the meaning of Article 3(1)(b) of Council Regulation (EC) No 139/2004 (2) (the ‘Merger Regulation’), sole control of the whole of Grupa Lotos Spółka Akcyjna (‘Lotos’) (the ‘Proposed Transaction’). For the purpose of this report, Orlen and Lotos are together referred to as the ‘Parties’.

On 7 August 2019, the Commission adopted a decision to initiate proceedings pursuant to Article 6(1)(c) of the Merger Regulation.

On 23 and 30 September and 22 November 2019, the Commission adopted four decisions pursuant to Article 11(3) of the Merger Regulation requiring the Parties to supply information that had been the object of different Commission requests sent to the Parties. (3) These decisions suspended the time limit referred to in Article 10(3) of the Merger Regulation pursuant to Article 9(1) of Commission Regulation (EC) 802/2004 (4) (the ‘Merger Implementing Regulation’). By letter of 2 March 2020, the Commission informed Orlen that the suspension of the time limit had come to an end on 28 February 2020 following the Parties’ submission of the required information on that date.

On 7 April 2020, the Commission adopted a statement of objections (the ‘SO’). The SO was formally notified to Orlen on 8 April 2020 (5) and Orlen was granted a deadline to submit its observations until 24 April 2020. On 7 April 2020, Lotos was also informed of the adoption of the SO and of the possibility to submit observations pursuant to Article 13(2) of the Merger Implementing Regulation.

On 8 April 2020, Orlen requested an extension of five working days to submit its observations on the SO, since it expected the collection of data and information to take more time due to the coronavirus crisis. On 14 April 2020, the Directorate-General for Competition granted such extension until 4 May 2020.

On 7 April 2020, Orlen obtained access to the accessible documents in the Commission’s case file via the handover of a DVD. Further access to the file was given on a regular basis, as regards documents that were added to the file later. Certain data were only accessible to Orlen’s economic consultants, by means of a virtual data room, to verify the conclusions that the Commission has drawn from them. (6) I have not received any complaint or request from the Parties regarding access to the file.

Between 30 September 2019 and 27 April 2020, I admitted six undertakings (competitors and/or customers of the Parties) as interested third persons in this case. The interested third persons were provided with a non-confidential version of the SO and given a time limit within which to submit their observations.

On 4 May 2020, Orlen submitted its written reply to the SO.

On the same day, Orlen formally entered into commitments vis-à-vis the Commission pursuant to Article 8(2) and 10(2) of the Merger Regulation with a view to rendering the Proposed Transaction compatible with the internal market and the functioning of the EEA Agreement. The Commission market-tested these commitments on 6 May 2020.

10.

Orlen requested a formal oral hearing, which took place on 11 May 2020. (7)

11.

On 25 May 2020, Orlen submitted revised commitments to the Commission. On 26 May 2020, these revised commitments were also market-tested.

12.

On 28 May 2020, the Commission addressed a letter of facts to Orlen, informing it about additional factual elements already present in the file at the time of the SO that were not yet expressly relied on in the SO but which, on further analysis of the file, the Commission considers relevant to support its arguments, as well as about certain additional evidence brought to the Commission’s attention after the adoption of the SO. Orlen submitted its reply to this letter of facts on 3 June 2020.

13.

First on 22, and finally on 23 June 2020, further revised commitments (the ‘Final Commitments’) were submitted to the Commission.

14.

In the draft decision, the Commission concludes that the Final Commitments remove the significant impediments to effective competition in the internal market or in a substantial part of it to which the Proposed Transaction would otherwise have given rise, while objections in certain relevant markets that were included in the SO have been dropped. As a result, the draft decision declares the Proposed Transaction compatible with the internal market and the functioning of the EEA Agreement, subject to full compliance with the Final Commitments.

15.

In view of the above, I consider that the effective exercise of procedural rights has been respected during the present proceedings.

Brussels, 2 July 2020.

Wouter WILS

(1) Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (‘Decision 2011/695/EU’).

(2) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).

(3) The decision of 23 September 2019 was addressed to Orlen, the decision of 30 September 2019 was addressed to both Orlen and Lotos, and the Commission sent two separate decisions to Orlen and Lotos on 22 November 2019.

(4) Commission Regulation (EC) No 802/2004 of 21 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 133, 30.4.2004, p. 1, as amended).

(5) On 7 April 2020, an (informal) advance information copy of the SO and its cover letter were sent to Orlen’s lawyers.

(6) This virtual data room was organised as a substitute to the customary physical data room since, due to the ongoing coronavirus pandemic, no physical data room could be organised. The economic consultants could share a non-confidential report on their conclusions with the Parties after the Commission had confirmed that it contained no confidential information.

(7) Due to the ongoing coronavirus pandemic, the oral hearing was held remotely by secure encrypted videoconference.

25.5.2021

Official Journal of the European Union

C 196/8

SUMMARY OF COMMISSION DECISION

of 14 July 2020

declaring a concentration compatible with the internal market and the functioning of the EEA Agreement

(Case M.9014 - PKN Orlen/Grupa Lotos)

(notified under document C(2020) 4651)

(Only the English version is authentic)

(2021/C 196/05)

On 14 July 2020 the Commission adopted a Decision in a merger case under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (1) , and in particular Article 8(2) of that Regulation. A non-confidential version of the full Decision, as the case may be in the form of a provisional version, can be found in the authentic language of the case on the website of the Directorate-General for Competition, at the following address: http://ec.europa.eu/competition/elojade/isef/index.cfm?clear=1&policy_area_id=2

I. THE PARTIES

(1)

PKN Orlen S.A. (Poland, hereinafter ‘Orlen’ or the ‘Notifying Party’) is a vertically integrated undertaking, mainly active in the refining and marketing of fuel and related products in Poland, as well as in Austria, Czechia, Estonia, Latvia, Lithuania, Germany and Slovakia. Orlen’s activities cover all fuel products typically processed at an oil refinery, including diesel, gasoline, light heating oil (’LHO’), liquid petroleum gas (’LPG’), heavy fuel oil (’HFO’), jet fuel, marine fuel, bitumen and naphta, as well as base oils and lubricants. Orlen is also active in the provision on bunkering services in Poland, mandatory storage services of gasoline in Poland for third Parties (referred to in this decision as compulsory storage obligations, ’CSOs’). Orlen also has a network of retail service stations across Poland selling motor fuels. Orlen is also active to a limited extent in upstream exploration, development and production of crude oil and natural gas. Finally, Orlen is also active on the petrochemicals market, producing a range of petrochemical products at its refineries in Poland and Czech Republic.

(2)

Grupa Lotos S.A. (Poland, hereinafter ‘Lotos’) is a vertically integrated undertaking mainly active in the refining and marketing (including retail sales) of fuel and related products mostly in Poland but also in Czechia and Estonia. Lotos’ activities also cover all fuel products typically processed at an oil refinery and it operates a network of retail services stations across the country. Lotos is also active in the provision of bunkering services and CSOs. Lotos also has activities in the upstream exploration, development and production of crude oil and natural gas. According to the Notifying Party, Lotos’ activities are mostly focused in Poland, although it also carries out exports of some of its products.

II. THE PROCEDURE

(3)

On 3 July 2019, the Commission received a formal notification pursuant to Article 4 of Council Regulation (EC) No 139/2004 (the ‘Merger Regulation’) by which Orlen will acquire sole control of Lotos (the ‘Concentration’). Orlen and Lotos are collectively referred to as the ‘Parties’.

(4)

The Commission raised serious doubts as to the compatibility of the Concentration with the internal market and adopted a Decision to initiate proceedings pursuant to Article 6(1)(c) of the Merger Regulation on 7 August 2019. Orlen submitted its written comments on the Article 6(1)(c) Decision on 21 August 2019.

(5)

On 23 and 30 September and 22 November 2019, the Commission adopted four decisions pursuant to Article 11(3) of the Merger Regulation requiring the Parties to supply the complete information that had been required by the Commission in different requests for information sent to the Parties.

(6)

These decisions suspended the time limit referred to in Article 10(3) of the Merger Regulation pursuant to Article 9(1) of Commission Regulation No. 802/2004 from 20 September 2019. By letter of 2 March 2020, the Commission informed Orlen that the suspension of the time limit had expired on 28 February 2020 following the Parties’ submission of the required information on that date.

(7)

On 7 April 2020, the Commission issued a Statement of Objections. On 4 May 2020, the Parties replied to the Statement of Objections. In addition, four third parties submitted comments on the Statement of Objections.

(8)

During the Phase II investigation, Orlen informally presented various options for proposed remedies. On 4 May 2020, Orlen formally submitted commitments. On 6 May, the Commission launched a market test on the commitments submitted on 4 May 2020.

(9)

The formal oral hearing took place on 11 May 2020. Due to the Covid-19 pandemic, the oral hearing was held remotely by secure encrypted videoconference.

(10)

On 25 May, revised commitments were submitted by Orlen. On 26 May, the Commission launched a market test of these revised commitments.

(11)

On 18 June, Orlen submitted final commitments (‘Final Commitments’).

III. RELEVANT MARKETS

(12)

The Parties’ activities overlap in several countries but the main overlaps take place in Poland and Czechia. Within these countries, significant horizontal overlaps are present regarding some of the Parties’ activities.

1. Wholesale supply of diesel, gasoline, LHO, HFO in Poland

(13)

The Commission has previously considered a possible segmentation between ex-refinery and non-retail sales of fuels, leaving open whether this distinction reflects competitive conditions on the Polish market. For the purposes of this Decision, the Commission considers that there is a single wholesale market for fuels in Poland. As in previous decisions, the Commission considers that the wholesale markets for the supply of fuels should be segmented on the basis of the fuels sold.

(14)

The Commission has previously defined the markets for ex-refinery supply of fuels as regional or broader in scope and the markets for the non-retail supply of fuels as national in scope. For the purposes of the present Decision, based on its finding that there is a single market for the wholesale supply of fuels in Poland, and based on its analysis of the patterns of supply and demand in Poland, the Commission concludes that the geographic scope of these markets is national.

2. Retail supply of motor fuels in Poland

(15)

The Commission has previously defined the market for the retail supply of motor fuels as sales of motor fuels at service stations, both branded and unbranded, in- and outside an integrated network. The relevant product market was defined as encompassing all types of motor fuels available at service stations, including gasoline, diesel, and automotive LPG. Moreover, the Commission has in the past considered a number of possible segmentations by types of petrol stations, sometimes leaving the question open and sometimes reaching a conclusion that such a segmentation was or was not justified on the basis of the specific characteristics of the market in question. In particular, the Commission has considered the possibility of segmenting the market of retail supply of motor fuels between sales at on-motorway and off-motorway stations; between sales from regular stations and from dedicated truck stops; between sales from marine and non-marine stations; or between sales from manned and unmanned stations. Finally, the Commission has also considered the possibility of segmenting the market of retail supply of motor fuels between sales to B2B customers (via a fuel card) and sales to B2C customers.

(16)

For the purposes of the present decision, the Commission considers that the relevant product market should be defined as encompassing all types of motor fuels available at service stations. The Commission further considers that the market for the retail supply of motor fuels can be sub-divided into the retail supply of fuels to B2B customers via fuel cards and the retail supply of motor fuels to other customers (B2C). Furthermore, the Commission considers that on-motorway petrol stations constitute a separate market segment.

(17)

For the purposes of the present Decision, and in line with previous decisions, the Commission considers that the markets for the retail supply of motor fuels to B2B customers via fuels cards as well as the market for the retail supply of motor fuels to B2C customers are national with local elements.

3. Ex-refinery supply of jet fuel in Poland and Czechia, and into-plane supply of jet fuel in Poland

(18)

The Commission has previously considered that aviation fuels constitute a separate product market distinct from other fuels. In previous cases, the Commission has considered distinct product markets for each of ex-refinery sales of aviation fuels on the one hand, and into-plane sales of aviation fuels on the other. For the purposes of the present decision, the Commission has followed the same approach.

(19)

The Commission has in the past considered that the geographic scope of the market for the ex-refinery sales of jet fuel could comprise the EEA or Western Europe. However, the Commission has also considered narrower markets. However, for the purposes of the present Decision, the Commission considers that the relevant geographic scope of the market for ex-refinery sales of jet fuel to customers in Poland is national, while the relevant geographic scope of the market for ex-refinery sales of jet fuel to customers in Czechia is either national in scope or consists of an area comprising at most Czechia, Poland, Slovakia, Hungary and East-Germany. For into-plane supplies of fuel, the Commission considers that the geographic scope of the market is limited to each specific airport where such services are provided.

4. Supply of the different types of bitumen in Poland

(20)

In past decisions, the Commission has considered that bitumen should be distinguished from other refined oil products based on its characteristics and its specific end-use. In previous decisions, the Commission has considered whether a distinction between the different types of bitumen could be appropriate. For the purposes of the present Decision, the Commission considers that it is appropriate to distinguish separate markets for the supply of standard bitumen, modified bitumen and industrial bitumen.

(21)

In its past practice, the Commission has assessed markets for the supply of bitumen from a national perspective. The Commission has also considered whether the geographical scope of bitumen supply could be narrower (and in two cases whether it could be wider) than national, without ever concluding on the market definition. For the purposes of the present Decision, the Commission considers that the relevant geographic market for each of the three bitumen types is national in scope.

5. Other relevant markets

(22)

In addition to the aforementioned markets, the Concentration also concerns other relevant markets on which the Parties’ activities overlap, including the supply of base oils, industrial lubricants, HFO, and bunkering services.

(23)

The Concentration also concerned markets in relation to which the Parties’ activities overlap or are vertically linked. These include the provision of mandatory storage services, the provision of rail transport services, slack wax, and the exploration, production and development of crude oil, among others.

(24)

The Commission concluded that the Concentration would not give rise to a significant impediment to effective competition on these other affected markets.

IV. COMPETITIVE ASSESSMENT

1. Assessment

(25)

The Commission assessed the affected markets as described in section III and reached the conclusion that the Concentration will lead to a significant impediment to effective competition in the following markets:

(26)

In the markets for the wholesale supply of diesel, gasoline, and LHO in Poland, the Commission came to this conclusion because of the Parties’ high market shares, of the fact that the Parties are close competitors, of the limited competitive constraint being exerted by the threat of customer switching, and of the high barriers to entry in this market.

(27)

In the markets for the retail supply of motor fuels in Poland, the Commission came to this conclusion because of the Parties’ high market shares, of the fact that the Parties are close competitors, and of the limited competitive constraint being exerted by other players on these markets.

(28)

In the markets for the ex-refinery supply of jet fuel in Poland and Czechia, and into-plane supply of jet fuel in Poland, the Commission came to this conclusion because of the Parties’ high market shares, of the fact that they are each other’s only competitors on the ex-refinery market in Poland and each other’s closest competitors in Czechia, of the limited competitive constraint being exerted by other players on the into-plane market, and of the barriers to entry on the into-plane market.

(29)

In the markets for the supply of the different types of bitumen in Poland, the Commission came to this conclusion because of the Parties’ high market shares, the fact that the Parties are close competitors and that they together operate three fourth of the available supply points for the different types of bitumen, and the limited competitive constraint being exerted by other players on these markets.

(30)

In short, the Commission has reached the conclusion that the Concentration would lead to a significant impediment to effective competition in the following markets:

(a)	Wholesale supply of diesel (Poland)

(b)	Wholesale supply of gasoline (Poland)

(c)	Wholesale supply of LHO (Poland)

(d)	Retail supply of motor fuels (overall, B2B, B2C and on-motorways) (Poland)

(e)	Ex-refinery supply of jet fuel (Poland and Czechia); into-plane supply of jet fuel at all airports in Poland

(f)	Supply of standard bitumen in Poland; supply of modified bitumen in Poland; supply of industrial bitumen in Poland

2. Commitments submitted by the Parties

(31)

As part of the Final Commitments, in order to address the competition concerns in the markets identified above, the Parties have submitted the undertakings described below.

(32)

For the wholesale supply of diesel, gasoline and LHO in Poland: the remedies consist of the divestiture of a 30 % stake in Lotos’ refinery which, combined with an offtake agreement, gives the remedy taker access to volumes of diesel and gasoline equivalent to approximately half of the refinery’s production. To enable imports equivalent to roughly another half of the refinery’s production, the remedies also consist in the divestiture of 5 terminals owned by Lotos and 4 owned by Orlen to an independent logistics operator (the ‘ILO’), and in a commitment by the merged entity to release fuel storage capacities booked with other storage providers in Poland;

(33)

For the retail supply of motor fuels in Poland: the remedies consist in the divestiture of 389 retail stations, in response to the concerns raised by the Commission at national and local levels. The buyer of the retail network will purchase fuels from the merged entity under a supply agreement.

(34)

For the ex-refinery supply of jet fuel in Poland and Czechia, and into-plane supply of jet fuel in Poland: the remedies consist in the divestiture of Lotos’s stake in a joint venture with BP, a commitment to continue supplying that joint venture with jet fuel, and a commitment to offer the joint venture and other jet fuel suppliers access to storage services. Orlen also commits to the construction of a new terminal to allow the import of jet fuel, which would be transferred to the ILO. The buyer of the 30 % stake in Lotos’ refinery will also have access to a share of that refinery’s output of jet fuel. In Czechia, Orlen will make volumes of jet fuel equivalent to Lotos’ sales pre-Transaction available via tender.

(35)

For the supply of the different types of bitumen in Poland: the remedies consist in the divestiture of two bitumen production and distribution plants in Southern Poland, along with a supply agreement.

(36)

In the Commission’s view, the Final Commitments are sufficient to address the identified competition concerns. In its decision, the Commission has, therefore, reached the conclusion that, on the basis of the undertakings submitted by the Parties, the Concentration will not lead to a significant impediment to effective competition in the internal market or in a substantial part of it.

V. CONCLUSION

(37)

For the reasons mentioned above, the decision concludes that the Concentration will not significantly impede effective competition in the Internal Market or in a substantial part of it.

Consequently the Concentration should be declared compatible with the Internal Market and the functioning of the EEA Agreement, in accordance with Article 2(2) and Article 8(2) of the Merger Regulation and Article 57 of the EEA Agreement.

(1) OJ L 24, 29.1.2004, p. 1.

25.5.2021

Official Journal of the European Union

C 196/13

DECISION OF THE EUROPEAN BANKING AUTHORITY

of 23 April 2021

laying down internal rules concerning restrictions of certain rights of data subjects in relation to processing of personal data in the framework of the functioning of the European Banking Authority

(2021/C 196/06)

THE MANAGEMENT BOARD,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (1), and in particular Article 25 thereof,

Having regard to Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (2), in particular Article 47(1) and 71 thereof,

Whereas:

(1)	The European Banking Authority (‘EBA’) carries out its activities in accordance with Regulation (EU) No 1093/2010 as may be further amended, repealed or replaced.

(2)

In accordance with Article 25(1) of Regulation (EU) 2018/1725 restrictions of the application of Articles 14 to 22, 35 and 36, as well as Article 4 of that Regulation in so far as its provisions correspond to the rights and obligations provided for in Articles 14 to 22 should be based on internal rules to be adopted by the EBA, where these are not based on legal acts adopted on the basis of the Treaties.

(3)	Where the EBA performs its duties with respect to data subject’s rights under Regulation (EU) 2018/1725, it shall consider whether any of the exemptions laid down in that Regulation apply.

(4)

The EBA processes several categories of personal data, including ‘objective’ data (such as identification data, contact data, professional data, administrative details, data received from specific sources, electronic communications and traffic data) and/or ‘subjective’ data (related to the case such as reasoning, behavioural and conduct data and data related to or brought forward in connection with the subject matter of the procedure or activity.

(5)	The EBA, represented by its Executive Director, acts as the data controller irrespective of further delegations of the controller role within the EBA to reflect operational responsibilities for specific personal data processing operations.

(6)

The personal data are stored securely in an electronic environment or on paper preventing unlawful access or transfer of data to persons who do not have a need to know. The personal data processed are retained for no longer than necessary and appropriate for the purposes for which the data are processed for the period specified in the data protection records and privacy statements of the EBA.

(7)

For the exercise of its missions, the EBA is bound to respect to the maximum extent possible, the fundamental rights of the data subjects, in particular those relating to the right of provision of information, access and rectification, right to erasure, restriction of processing, right of communication of a personal data breach to the data subject or confidentiality of communication as enshrined in Regulation (EU) 2018/1725.

(8)

However, the EBA may be obliged to restrict the information to data subjects or other data subject rights to protect, in particular, the confidentiality and effectiveness of its own investigations, the investigations and proceedings of other public authorities, as well as the rights of other persons related to its investigations or other procedures.

(9)

Within the framework of its administrative functioning, the EBA may conduct a number of investigations, such as administrative inquiries, disciplinary proceedings, preliminary activities related to financial fraud, investigations relating to whistleblowing or harassment cases, internal audits, investigations performed by the Data Protection Officer (DPO) or ethics investigations, ICT investigations, information security investigations and activities performed in the context of security risks and incidents management. In addition, for the exercise of its missions, the EBA may conduct investigations relating to potential breaches of Union law, settlement of disagreements between competent authorities, mediation conducted between competent authorities as well as investigations related to the prevention and countering of money laundering and of terrorist financing, inquiries related to consumer protection and financial activities in order to assess potential threats to the integrity of financial markets or the stability of the financial system in the Union.

(10)

The internal rules should apply to all processing operations carried out by the EBA in the performance of the above investigations. They should also apply to processing operations carried out prior to the opening of the investigations referred to above, during these investigations and during the monitoring of the follow-up to the outcome of these investigations. It should also include assistance, coordination and/or cooperation requested from the EBA by national authorities and international organisations in the context of their own administrative investigations.

(11)

Before making use of the restrictions foreseen in these internal rules, the EBA should consider whether any of the exemptions laid down in Regulation (EU) 2018/1725 applies. In the cases where restrictions under these internal rules apply, the EBA has to explain why these restrictions are strictly necessary and proportionate in a democratic society and respect the essence of the fundamental rights and freedoms.

(12)	The EBA should monitor if the conditions that justify the restriction continue to apply and lift the restriction when they no longer apply.

(13)	The Controller should inform the Data Protection Officer when restricting the application of certain data subjects’ rights under this Decision, when extending such restriction and when the restriction is lifted,

HAS DECIDED AS FOLLOWS:

Article 1

Subject matter and scope

1. This Decision lays down internal rules relating to the conditions under which the EBA in the framework of the activities set out in paragraphs 2 to 5 may restrict the application of the rights enshrined in Articles 14 to 21, and 35, as well as Article 4 thereof, following Article 25 of Regulation (EU) 2018/1725. These restrictions are without prejudice to the exemptions to data subject rights provided in Regulation (EU) 2018/1725.

2. Within the framework of the administrative functioning of the EBA, the restrictions foreseen in paragraph 1 apply to the processing of personal data by the EBA for the purpose of:

(a)	administrative inquiries and disciplinary proceedings, in accordance with Article 25(1) point (f) of Regulation (EU) 2018/1725;

(b)	processing irregularities in liaison with the European Anti-Fraud Office (OLAF), in accordance with Article 25(1) points (b) or (f) of Regulation (EU) 2018/1725;

(c)	processing whistleblowing cases, (formal and informal) harassment cases as well as internal and external complaints, in accordance with Article 25(1) point (f) of Regulation (EU) 2018/1725;

(d)	internal audits, ethics investigations, inquiries, proceedings and investigations performed by the Data Protection Officer (‘the DPO’) in line with Article 25(1) points (f) or (g) or Article 45(2) of Regulation (EU) 2018/1725;

(e)	ICT investigations, information security investigations and activities performed in the context of security risks and incidents management, handled internally or with external involvement, in accordance with Article 25(1) point (d) of the Regulation (EU) 2018/1725.

3. Within the exercise of the EBA’s missions, the restrictions foreseen in paragraph 1 apply to the processing of personal data by the EBA for the purpose of any of the following:

(a)	investigations of potential breaches of Union law pursuant to Article 17 of Regulation (EU) No 1093/2010;

(b)	inquiries and proceedings related to consumer protection and financial activities in order to assess potential threats to the integrity of financial markets or the stability of the financial system in the Union pursuant to Articles 9 and 22 of Regulation (EU) No 1093/2010;

(c)	proceedings related to the settlement of disagreements between competent authorities pursuant to Article 19 of Regulation (EU) No 1093/2010 and legislative acts referred to in Article 1(2) of that Regulation;

(d)	proceedings related to non-binding mediation carried out by the EBA pursuant to Article 31(2)(c) of Regulation (EU) No 1093/2010 and legislative acts referred to in Article 1(2) of that Regulation (EU);

(e)	investigations related to the prevention and countering of money laundering and of terrorist financing pursuant to Article 9b of Regulation (EU) No 1093/2010 and legislative acts referred to in Article 1(2) of that Regulation.

4. In addition, these restrictions apply to assistance, coordination and/or cooperation provided by the EBA to competent authorities as defined in Article 4 point (2) of Regulation (EU) No 1093/2010, including third country authorities, and international organisations in the context of the investigations conducted for the exercise of their statutory missions.

5. The restrictions referred to in paragraph 1 also apply to processing operations carried out prior to the opening of the investigations or other administrative enquiries referred to in paragraphs 2 to 4, during these investigations and during the monitoring of the follow-up to the outcome of these investigations.

6. This Decision applies to any category of personal data processed in the context of the activities set out in paragraphs 2 to 5.

7. Subject to the conditions set out in this Decision the restrictions may apply to the following rights: provision of information to data subjects, right of access, rectification, erasure, restriction of processing and communication of a personal data breach to the data subject.

Article 2

Controller in charge of investigations and applicable safeguards

1. The safeguards in place to prevent abuse or unlawful access or transfer in the context of the investigations referred to in Article 1 are the following:

(a)	paper documents shall be kept in locked cupboards which are only accessible to authorized staff members on a need-to know basis. The security system of the premises, internal record management policies, staff training and audits shall also be in place to ensure proper safeguards;

(b)

electronic files shall be managed with the EBA’s approved devices, information systems, applications and storage media resources. The data shall be stored in a secure electronic environment which is designed and maintained to prevent accidental or unlawful destruction, loss, alteration, transfer, unauthorized disclosure of, or access to, personal data to internal and external partners who are not authorized to have access to such data. The EBA’s document management system applications shall be used to organise, find, share, maintain and protect the EBA’s electronic data. Authorised EBA staff shall only be granted access to electronic data based on a need to know basis;

(c)	databases and electronic files shall be password-protected under a single sign-on system and connected automatically to the user’s ID and password. Replacing users is strictly prohibited. Electronic records shall be held securely to safeguard the confidentiality and privacy of the data therein;

(d)	all persons having access to the data shall be bound by the obligation of confidentiality and shall sign a document acknowledging that obligation and the requirements set out in this paragraph.

2. The Controller of the processing operations is the EBA, represented by its Executive Director. Data subjects shall be informed of the delegated controller by way of the data protection records published on the website of the EBA.

3. The retention period of the personal data processed shall be no longer than necessary and appropriate for the purposes for which the data are processed. The retention period shall be specified in the data protection records and privacy statements referred to in Article 5(1).

4. Where the EBA considers applying a restriction, the risk to the rights and freedoms of the data subject shall be weighed, in particular, against the risk to the rights and freedoms of other data subjects and the risk of cancelling the effect of the EBA’s investigations or procedures for example by destroying evidence. The risks to the rights and freedoms of the data subject concern primarily, but are not limited to, reputational risks and risks to the right of defence and the right to be heard.

Article 3

Restrictions

1. Pursuant to Article 25(1) of Regulation (EU) 2018/1725, any restriction shall only be applied by the EBA to safeguard:

(a)

the prevention, investigation, detection and prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security, in particular in relation to the processing operations under Article 1(2) point (b) of this Decision;

(b)

other important objectives of general public interest of the Union or of a Member State, in particular the objectives of the common foreign and security policy of the Union or an important economic or financial interest of the Union or of a Member State, including monetary, budgetary and taxation matters, public health and social security in particular in relation to the processing operations under Article 1(3) of this Decision;

(c)	the internal security of Union institutions and bodies, including of their electronic communications networks, in particular in relation to the processing operation under Article 1(2) point (c) of this Decision;

(d)	the prevention, investigation, detection and prosecution of breaches of ethics for regulated professions, in particular in relation to the processing operations under Article 1(2) points (a) and (c) of this Decision;

(e)	a monitoring, inspection or regulatory function connected, even occasionally, to the exercise of official authority in the cases referred to in points (a) and (b), in particular in relation to the processing operations under Article 1(2) point (d) of this Decision;

(f)	the protection of the data subject or the rights and freedoms of others.

2. As a specific application of the purposes described in paragraph 1 above, the EBA may apply restrictions in relation to personal data exchanged with Commission services or other Union institutions, bodies, agencies and offices, competent authorities of Member States or third countries or international organisations, if one or more of the following circumstances occurs:

(a)

where the exercise of those rights and obligations could be restricted by Commission services or other Union institutions, bodies, agencies and offices on the basis of other acts provided for in Article 25 of Regulation (EU) 2018/1725 or in accordance with Chapter IX of that Regulation or with the founding acts of other Union institutions, bodies, agencies and offices;

(b)

where the exercise of those rights and obligations could be restricted by competent authorities of Member States on the basis of acts referred to in Article 23 of Regulation (EU) 2016/679 of the European Parliament and of the Council, or under national measures transposing Articles 13(3), 15(3) or 16(3) of Directive (EU) 2016/680 of the European Parliament and of the Council;

(c)	where the exercise of those rights and obligations would jeopardise the EBA’s cooperation with third country or international organisations in the conduct of its tasks or of the tasks of the third country or international organisations.

Before applying restrictions in the circumstances referred to in points (a) and (b) of the first subparagraph, the EBA shall consult the relevant Commission services, Union institutions, bodies, agencies, offices or the competent authorities of Member States unless it is clear to the EBA that the application of a restriction is provided for by one of the acts referred to in those points.

3. Any restriction shall be necessary and proportionate taking into account the risks to the rights and freedoms of data subjects and respect the essence of the fundamental rights and freedoms in a democratic society.

4. If the application of restriction is considered, a necessity and proportionality test shall be carried out based on the present rules. It shall be documented through an internal assessment note for accountability purposes on a case by case basis.

5. Restrictions shall be lifted as soon as the circumstances that justify them no longer apply. In particular, where it is considered that the exercise of the restricted right would no longer cancel the effect of the restriction imposed or adversely affect the rights or freedoms of other data subjects.

Article 4

Review by the Data Protection Officer

1. The Controller shall, without undue delay, inform the DPO whenever the Controller intends to restrict the application of data subjects’ rights, or extends the restriction, in accordance with this Decision. The Controller shall provide the DPO access to the internal note containing the assessment of the necessity and proportionality of the restriction as well as, where applicable, underlying factual and legal elements and document the date of informing the DPO.

2. The DPO may request the Controller in writing to review the application of the restrictions. The Controller shall inform the DPO in writing about the outcome of the requested review.

3. The Controller shall inform the DPO when the restriction has been lifted.

4. The Controller shall document the involvement of the DPO along the different steps of the process, starting with the date of informing the DPO.

5. The internal note, and, where applicable, underlying factual and legal elements shall be made available to the European Data Protection Supervisor on request.

Article 5

Provision of information to data subject

1. The EBA shall publish on its website data protection records that inform all data subjects of its activities involving processing of personal data, including information relating to the potential restriction of data subject rights pursuant to Article 3 of this Decision. The information shall cover which rights may be restricted, the grounds on which restrictions may be applied, and their potential duration.

2. The EBA shall individually notify all data subjects, whom it considers persons concerned by the investigation or inquiry, of the data protection record of the specific processing operations concerned, without undue delay and in a written form.

3. In duly justified cases and under the conditions stipulated in this decision, the EBA may restrict, wholly or partly, the provision of information to the data subjects referred to in paragraph 2. In this case, it shall document in an internal note the reasons for the restriction, the legal ground in accordance with Article 3 of this Decision, including an assessment of the necessity and proportionality of the restriction.

4. The restriction referred to in paragraph 3 shall continue to apply as long as the reasons justifying it remain applicable.

Where the reasons for the restriction no longer apply, the EBA shall notify the data subject concerned of the relevant data protection record and the principal reasons for the restriction. This notification can be combined with an invitation to make submission on the findings of the investigation or inquiry underway, as part of the exercise of the rights of defence of the data subject concerned. At the same time, the EBA shall inform the data subject concerned of the right of lodging a complaint with the European Data Protection Supervisor at any time or of seeking a judicial remedy in the Court of Justice of the European Union.

The EBA shall review the application of the restriction every six months from its adoption and at the closure of the relevant inquiry or investigation.

Article 6

Right of access by data subject

1. Further to a data subject request, the EBA may restrict, wholly or partly, the right of this data subject to obtain confirmation as to whether or not personal data concerning him or her are being processed by the EBA in the context of an investigation or inquiry referred to in Article 1 of this Decision, and where that is the case, the right of access to this data and other information referred to in Article 17 of Regulation (EU) 2018/1725.

2. Where the EBA restricts the right of access, it shall inform the data subject concerned, in its reply to the request, of the restriction applied and of the principal reasons thereof, and of the possibility of lodging a complaint with the European Data Protection Supervisor or of seeking a judicial remedy in the Court of Justice of the European Union.

3. The provision of information referred to in paragraph 2 may be deferred, omitted or denied if it would cancel the effect of the restriction imposed in accordance with Article 25(8) of Regulation (EU) 2018/1725. Where this is the case, the EBA shall document in an internal assessment note the reasons for the restriction, including an assessment of the necessity, proportionality of the restriction and its duration.

4. The EBA shall review the application of the restriction every six months from its adoption and at the closure of the relevant inquiry or investigation.

Article 7

Right of rectification, erasure and restriction of processing

1. Further to a data subject request, the EBA may, in the context of an investigation or inquiry referred to in Article 1 of this Decision, restricts, wholly or partly, the right of this data subject to obtain rectification of personal data related to him or her, to erase or to restrict processing of his or her personal data as provided for in Articles 18, 19 and 20 of Regulation (EU) 2018/1725.

2. Where the EBA restricts the application of the right to rectification, erasure or restriction of processing referred to above, it shall take the steps set out in Articles 6(2) and document it in accordance with Article 6(3).

3. The EBA shall review the application of the restriction every six months from its adoption and at the closure of the relevant inquiry or investigation.

Article 8

Communication of a personal data breach to the data subject

1. The EBA shall communicate a personal data breach to the data subject concerned without undue delay when the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons as provided for in Article 35 of Regulation (EU) 2018/1725.

2. In duly justified cases and under the conditions stipulated in this decision, the EBA may restrict, wholly or partly, the provision of information to the data subjects referred to in paragraph 1 of this Article. In this case, it shall document in an internal note the reasons for the restriction, the legal ground in accordance with Article 3 of this Decision, including an assessment of the necessity and proportionality of the restriction.

3. The restriction referred to in paragraph 2 shall continue to apply as long as the reasons justifying it remain applicable.

Where the reasons for the restriction no longer apply, the EBA shall communicate the personal data breach to the data subject concerned and inform the data subject of the principal reasons for the restriction. At the same time, the EBA shall inform the data subject concerned of the right of lodging a complaint with the European Data Protection Supervisor at any time or of seeking a judicial remedy in the Court of Justice of the European Union.

The EBA shall review the application of the restriction every six months from its adoption and at the closure of the relevant inquiry or investigation.

Article 9

Entry into force

This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Done at Paris, 23 April 2021.

For the Management Board

José Manuel CAMPA

Chairperson

(1) . OJ L 295, 21.11.2018, p. 39.

(2) 1. OJ L331, 15.12.2010, p. 12.

		ISSN 1977-091X
Official Journal of the European Union		C 196

English edition	Information and Notices	Volume 64 25 May 2021

Contents		page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	European Commission
2021/C 196/01	Euro exchange rates — 21 May 2021	1
2021/C 196/02	Euro exchange rates — 24 May 2021	2
2021/C 196/03	Opinion of the Advisory Committee on mergers at its meeting of 2 July 2020 concerning a preliminary draft decision relating to Case M.9014 — PKN Orlen/Grupa Lotos – Rapporteur: Belgium	3
2021/C 196/04	Final Report of the Hearing Officer – Case M.9014 — PKN Orlen/Grupa Lotos	6
2021/C 196/05	Summary of Commission Decision of 14 July 2020 declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case M.9014 - PKN Orlen/Grupa Lotos) (notified under document C(2020) 4651)	8
	European Banking Authority
2021/C 196/06	Decision of the European Banking Authority of 23 April 2021 laying down internal rules concerning restrictions of certain rights of data subjects in relation to processing of personal data in the framework of the functioning of the European Banking Authority	13
	NOTICES FROM MEMBER STATES
2021/C 196/07	Commission information notice pursuant to Article 16(4) of Regulation 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community – Establishment of public service obligations in respect of scheduled air services ( 1 )	19

	Currency	Exchange rate
USD	US dollar	1,2188
JPY	Japanese yen	132,61
DKK	Danish krone	7,4362
GBP	Pound sterling	0,85870
SEK	Swedish krona	10,1220
CHF	Swiss franc	1,0951
ISK	Iceland króna	147,90
NOK	Norwegian krone	10,1420
BGN	Bulgarian lev	1,9558
CZK	Czech koruna	25,452
HUF	Hungarian forint	349,11
PLN	Polish zloty	4,4892
RON	Romanian leu	4,9268
TRY	Turkish lira	10,2151
AUD	Australian dollar	1,5698
CAD	Canadian dollar	1,4680
HKD	Hong Kong dollar	9,4639
NZD	New Zealand dollar	1,6914
SGD	Singapore dollar	1,6218
KRW	South Korean won	1 373,05
ZAR	South African rand	16,9880
CNY	Chinese yuan renminbi	7,8393
HRK	Croatian kuna	7,5102
IDR	Indonesian rupiah	17 495,87
MYR	Malaysian ringgit	5,0471
PHP	Philippine peso	58,391
RUB	Russian rouble	89,4741
THB	Thai baht	38,234
BRL	Brazilian real	6,4628
MXN	Mexican peso	24,2741
INR	Indian rupee	88,8020

	Currency	Exchange rate
USD	US dollar	1,2212
JPY	Japanese yen	132,97
DKK	Danish krone	7,4364
GBP	Pound sterling	0,86408
SEK	Swedish krona	10,1670
CHF	Swiss franc	1,0957
ISK	Iceland króna	150,98
NOK	Norwegian krone	10,2090
BGN	Bulgarian lev	1,9558
CZK	Czech koruna	25,424
HUF	Hungarian forint	347,47
PLN	Polish zloty	4,4850
RON	Romanian leu	4,9255
TRY	Turkish lira	10,2427
AUD	Australian dollar	1,5804
CAD	Canadian dollar	1,4731
HKD	Hong Kong dollar	9,4833
NZD	New Zealand dollar	1,6997
SGD	Singapore dollar	1,6236
KRW	South Korean won	1 375,43
ZAR	South African rand	17,0622
CNY	Chinese yuan renminbi	7,8487
HRK	Croatian kuna	7,5043
IDR	Indonesian rupiah	17 530,33
MYR	Malaysian ringgit	5,0631
PHP	Philippine peso	58,731
RUB	Russian rouble	90,0519
THB	Thai baht	38,297
BRL	Brazilian real	6,5299
MXN	Mexican peso	24,3683
INR	Indian rupee	89,0517