General introduction to the legislative framework for private antitrust enforcement
The key regulation enabling private antitrust enforcement in Poland is currently the Private Enforcement Act. Private antitrust enforcement is founded on the principle of the culpability of the infringer of the competition law. As such, there are three requirements for an infringer to be liable under the Act:
- culpability: that is, that a defendant's behaviour infringing the competition law is illegal, unless the defendant is not at fault;
- harm incurred by the claimant; and
- the causal link between the defendant's behaviour and that harm.
Whether an infringer is at fault for an infringement of the competition law is determined on the basis of two premises: whether such behaviour is illegal (objective test) and whether the defendant was at fault (subjective test). Under the Private Enforcement Act, an infringement of competition law, which is understood as an infringement of Article 101 or 102 of the Treaty on the Functioning of the European Union (TFEU) or their Polish equivalents (i.e., Articles 6 and 9 of the Competition Act, respectively), fulfills the illegality requirement.
For liability to arise, a defendant must be liable for the infringement of the law, and the Private Enforcement Act introduces a statutory rebuttable presumption that the undertaking infringing the competition law is liable for that infringement. Consequently, it is the defendant who has to prove his or her non-liability. Further, Polish competition law provides for a statutory presumption that any infringement of the competition law causes harm, which includes both actual loss (damnum emergens) and lost revenue (lucrum cessans). To establish liability for an antitrust violation, there also must be a causal link between the infringement of the competition law and the harm incurred by the claimant. Under the applicable general provisions of Polish law, the infringer is therefore liable only for the ordinary consequences of its actions (objective test).
Cases concerning private antitrust litigation are heard before the district courts, regardless of the value of the claim.
The limitation period in cases of private antitrust enforcement is five years from the date the claimant became aware of the loss resulting from the competition law infringement, or should have become aware of it if it had exercised due diligence. The limitation period cannot, however, be extended to longer than 10 years from the date of the occurrence of the infringement. The limitation period starts running only if the competition law infringement ceases to exist or is suspended if proceedings regarding the case are launched by the President of the Office of Competition and Consumer Protection (OCCP), the European Commission or any national competition authority within the EU. That suspension is automatically lifted and the limitation period continues to run one year after the proceedings before the relevant authority are concluded. Unlike the Damages Directive, the Private Enforcement Act does not provide for a suspension of the limitation period while parties attempt to resolve a dispute amicably.
The Private Enforcement Act provides that an infringement of competition is deemed to be established by a final infringement decision of the OCCP or a final judgment rendered by a court as a result of an appeal of a decision of the OCCP. The finding of an infringement in a legally valid decision of the OCCP or judgment should be regarded as proven for the purposes of actions for damages related to that infringement filed in Polish courts. The court is bound by an infringement decision insofar as it covers the nature of the infringement and its material, personal, temporary and territorial scope, as determined by the OCCP in the exercise of its jurisdiction. Moreover, the court is only bound by final infringement decisions of the OCCP or final judgments rendered by a court as a result of an appeal of a decision of the OCCP. Therefore, the final infringement decision means a decision that finds the competition law infringement and that is not a subject to ordinary appeal remedies.
Furthermore, under Polish law the OCCP can present the court with an opinion on the case in question, particularly in matters concerning competition and consumer protection, when it is justified by the public interest. The OCCP's opinion may relate to the factual circumstances of a court case or the legal assessment of those circumstances. The opinion cannot be considered as evidence in the case and is not binding on the court. Providing the court with an opinion does not make the OCCP a party or any other participant to the court proceedings.
The provisions of the Private Enforcement Act apply in their entirety only to competition law infringements that took place after 27 June 2017, that is after the Private Enforcement Act entered into force. However, procedural rules set out in the Private Enforcement Act apply to all civil proceedings concerning antitrust damages initiated after 27 June 2017, regardless of when the competition law infringement occurred, if it remains within the limitation period.