EU Member States that implemented the Directive 2014/104/EU ("Damages Directive") had certain guidelines to follow with regard to the limitation period for claims for damages caused by anti-competitive behavior. It is interesting to observe how the specific measures adopted in various jurisdictions were influenced by the local rules pertaining to limitation.
The Polish Act of 21 April 2017 on Claims for Compensation of Damage Caused by Infringement of Competition Law (Ustawa z dnia 21 kwietnia 2017 r. o roszczeniach o naprawienie szkody wyrządzonej przez naruszenie prawa konkurencji; "Polish Compensation Act"), which implements the Damages Directive in Poland, only came into force on 27 June 2017.
Due to the specific intertemporal rules adopted in the Polish Compensation Act, we have to consider both the applicable Polish legal regime before and after the implementation of the Damages Directive when determining the date on which particular antitrust damages claims become time-barred under Polish law.
Before the implementation, there were three kinds of limitation periods for antitrust damages claims (the same as with any other damages claims):
- A 3-year “subjective” limitation period commences when (and only when) the claimant has positive knowledge of harm and the identity of the infringer. In practice, a Polish court would decide on a case-by-case basis when the claimant gained relevant knowledge for the period to start.
- A 10-year limitation period commences when an action which causes harm occurs (irrespective of the claimant's knowledge of the infringement, the harm caused to it, and the identity of the infringer) but does not begin to run before the infringement has ceased. This objective 10-year limitation period is only applicable if the subjective 3-year limitation period has not yet expired.
- There is also a 20-year limitation period applicable to any harm caused by a criminal offence (zbrodnia lub występek). This limitation period always commences when the criminal offence was committed.
As for the new regulations, the Polish Competition Act (and the implied amendment to the Polish Civil Code) extended the subjective limitation period for antitrust damages claims to 5 years, while at the same time modifying the conditions. The limitation period commences when the claimant knows, or should have known using due care, of harm and the identity of the infringer. The limitation period does not commence before the infringement has ceased.
In practice, this means that the courts assessing particular claims will not only have to consider the fact of the claimant having positive knowledge of the circumstances, but also the claimant’s due care in acquiring such knowledge.
The rules on the 10-year limitation period and the 20-year limitation period are similar to the rules prior to the implementation of the Damages Directive.
The Polish Compensation Act determines that the new limitation periods introduced by the Polish Compensation Act shall apply to any antitrust damages claims which were not time-barred on the day it entered into force (27 June 2017) under the rules applicable until then. Also, the former 3-year limitation period that has started to run before that date is deemed to have commenced (anew) on the day when the Polish Competition Act has entered into force.
In practice, this means that even some “subjective” limitation periods may be extended to as long as 6 years in total in a situation where the date of entry into force of the new regulation would have been the last day the antitrust damage claim would become time barred in accordance with the previous regulations.
Last but not least, it is worth mentioning that in Poland the limitation period can be interrupted in more ways than by bringing a civil action against the infringer before a competent court. The period would also break with the filing of a formal application for summons to a conciliation hearing before a common civil court or by commencement of mediation. In addition, any acknowledgement of the claim by the infringer interrupts the limitation period. After the effective interruption, the limitation period starts to run anew.
In summary, there are two main aspects of this new regulation. On the one hand, the new regulation will prolong the traditional 3-year limitation period in Poland, which will lead to greater protection of the interests of aggrieved parties. On the other hand, this regulation will introduce a new concept to limitation periods by which the potentially aggrieved parties will need to exercise the relevant duty of care in obtaining knowledge of the infringer.