The Act on Claims for Redress of Injury Caused by Violation of Competition Law that entered into force in Poland in 2017:

The new Act was imposed by Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014. This new rule is particularly unusual in Polish civil procedure and has prompted discussion among legal practitioners and scholars because the structure of the new procedure is close to the concepts of discovery or disclosure in common law jurisdictions.

What is so controversial?

Under the Polish Code on Civil Procedure a party can request the court to disclose evidence which is in the other's party possession. In order to do so the claiming party needs to prove that the evidence that is being requested to be disclosed has significant value for the court proceeding. Additionally, the claiming party has to precisely name the evidence that is requested to be disclosed. However, in antitrust cases, protection of a party's rights to claim damages was expanded by the possibility of applying for disclosure of evidence. This may also happen in a situation in which the plaintiff presumes that certain evidence exists.  This means that the opposing party may be forced to submit evidence that is counteractive to its own statements.

Pros and cons?

Before the new law entered into force, it was extremely difficult for a plaintiff to prove its claims. The solution introduced by the new Act aims to create a mechanism which enables a plaintiff to obtain relevant evidence. However, there is a risk that the new procedure may be abused by parties in order to obtain confidential information, such as trade secrets, lists of clients, or other information that could provide a basis for additional litigation.

Everything in the "Court's hands"

The court may decide to limit the scope of information that is able to be disclosed, to deny the disclosure of a specific piece of evidence or to impose a court fee on a party filing a motion in bad faith. When deciding whether a certain motion should be accepted, the courts apply the rule of proportionality. This means that the court establishes whether the information that is going to be obtained is valuable enough to be disclosed. Additionally, on the basis of the same rule, the court decides whether the disclosure of evidence is not too expensive or time-consuming.

It will be necessary to observe the future decisions of Polish courts as they will have significant impact on the future scope of disclosure of evidence.