Ownership-neutral or ownership-blind? The case of Polish state-owned enterprises in EU merger control

Abstract

Abstract The article discusses the challenges associated with the assessment of economic concentrations involving state-owned enterprises (SOEs) under the European Union (EU) merger control. It reveals inconsistencies in ascertaining the exercise of and the (anti)competitive effects stemming from the state control over the SOEs caused by the strategic use of the ‘single economic unit’ concept in cases involving both European and non-European SOEs. Using the example of Poland and its economic statecraft, the article demonstrates how the use of various ownership-based and regulatory mechanisms employed by the State allows it to preserve control over strategic industries and enterprises. The study suggests that insufficient attention to the state ownership and state control in the EU merger control may create a risk of anti-competitive market distortions caused by the SOE-led industrial policies of the Member States to the detriment of the functioning of the internal market.