1. Introduction

1.1 Current Framework for Private Antitrust Litigation

In addition to the public law enforcement of competition law violations by the relevant authority in Poland (the President of the Office of Competition and Consumer Protection, or the OCCP), a party can lodge civil damage actions. Private damage actions are regulated by the Act of 21 April 2017, on Claims for Compensation for Damage Caused by Infringement of Competition Law (the “Damage Act”), which implemented EU Directive 2014/104/EU (the “Compensation Directive”) into Polish national law. The Damage Act came into force on 27 June 2017.

The basis under which a claimant is allowed to pursue a damage claim is a violation of Article 101 or Article 102 of the Treaty on the Functioning of the European Union (TFEU), or the prohibitions against anti-competitive agreements and abuses of a dominant position, set out in Article 6 and Article 9 of the Polish Act of 16 February 2007 on Competition and Consumer Protection (the “Competition Act”).

Despite the continued development of Polish jurisprudence in the field of private competition actions, there are not many final judgments, which is probably, among other factors, due to the nature, complexity, and the long duration of an average damage action case as well as the relatively limited activity of the OCCP, which results in a small number of follow-on cases.

Taking into account the relatively recent entry into force of the Damage Act, a significant number of private damage actions ruled upon by the courts still concern civil damage claims that, while filed after the effective date the Damage Act, concern damages that presumably occurred prior to the Damage Act’s effective date. In such cases, the Damage Act applies to a limited extent (for instance, orders requiring the disclosure of evidence, civil courts being bound by a final non-appealable infringement decision of the OCCP, and rules for determining the amount of damage). 

Although the Damage Act was intended to support private antitrust litigation, there are already completed cases based on previous regulations. Among such cases, it is worth mentioning a litigation involving a claim related to an act of unfair competition by a dominant radio broadcasting and radiotelecommunications operator, which was concluded with a settlement worth approximately PLN192 million (approximately EUR45 million).

1.2 Recent Developments

Since the Damage Act came into force, there have been no legislative amendments. One of the more common issues in cases presently pending before the courts is the statute of limitations for claims of violations that ended before the Damage Act came into force. In effect, since the Damage Act came into force, the courts have been engaged in solving interpretative doubts around transitional provisions regarding limitation periods.

The Polish legislature has adopted special transitional provisions. In general, if a claim relates to a violation that ended before the Damage Act came into force, the limitation period is determined based on the previous statute of limitations regulations (which link the beginning of the limitation period with obtaining knowledge of the damage and perpetrators). However, if an injured party in such a case could only learn about the damage and the perpetrator by exercising due diligence, the limitation period runs anew from the date of entry into force of the Damage Act. 

The subject of the disputes before courts hearing damage actions was whether the statute of limitations should start to run from the date of entry into force of the Damage Act, irrespective of the fact that the statute of limitations had already started to run pursuant to the pre-Damage Act legal provisions (based on the fact that the plaintiff had knowledge of the damage suffered and those who caused it). In a number of judgments, the courts refused to accept such a view which – if accepted – would, in effect, have resulted in a second statute of limitations for such claims that started to run anew with the entry into force of the Damage Act. These judgments, however, are not final at the time of writing this chapter.

2. Private Antitrust Claims: Basis and Procedure

2.1 Statutory Basis

The Competition Act forms the statutory basis for the prohibition of anti-competitive agreements and abuse of dominant position. The amendment of 20 May 2023 of the Competition Act was introduced in response to the obligation on EU member states to implement Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 (the “ECN+ Directive”) to empower the competition authorities of the member states to be more effective enforcers and to ensure the proper functioning of the internal market.

The prohibition of anti-competitive agreements in the Polish law (Article 6 of the Competition Act) is similar to the prohibition in Article 101(1) of the TFEU. The principles on the basis of which it is possible to justify a restriction of competition are also similar. Article 8 of the Competition Act provides an exemption to the prohibition of anticompetitive agreements, similar to that in Article 101(3) of the TFEU. Likewise, the Competition Act’s prohibition against abusing a dominant position (Article 9) concerns anti-competitive conduct corresponding to that prohibited by Article 102 of the TFEU. 

With regard to public enforcement, the OCCP is the only public authority authorised to enforce the Competition Act. In cases of a restriction of competition that represents a threat to the public interest, the OCCP institutes competition investigatory proceedings ex officio.

With regard to private enforcement, the governing Polish law is the Damage Act, in force since 27 June 2017, which implements the Compensation Directive into Polish national law. The Damage Act applies to civil actions concerning anti-competitive conduct that continued through 27 June 2017 as well as, to a limited extent, to conduct that finished before that date. The Damage Act provides for the legal grounds an injured party may use when lodging a civil claim to declare conduct to be in violation of the competition law and to be awarded damages.

Pursuant to Article 3 of the Damage Act, the perpetrator of the infringement is obliged to compensate the injured person for damages caused by the infringement of competition law. With respect to establishing liability for the damages, the prerequisite of “fault” must be proven.

A plaintiff can also rely on other legal grounds, applicable also prior to the enactment of the Damage Act, in particular the Polish Civil Code and Act of 17 December 2009 on Pursuing Claims in Group Proceeding (as a member of a class). In the event of an unfair trading practice being applied (such as hindering others’ access to the market), the company whose interest is threatened may also base claims on the provisions of the Act of 16 April 1993 on Combating Unfair Competition, when the purpose of a plaintiff’s claim is to seek the discontinuation of the illegal practice or the removal of its effects, and not damages. For an award of damages, it is the Damage Act, not the Act on Combating Unfair Competition, that remains the proper legal basis for cases of unfair trading practices being an infringement of competition law. Please refer to Article 34 of the Damage Act to see the legal basis for this rule. 

2.2 Courts

Damage actions fall within the competence of civil regional courts (Article 11 of the Damage Act). As a general rule, the court of local jurisdiction is where the defendant has its registered office or where the damage occurred. The parties may also stipulate by agreement which court will have local jurisdiction.

If a damage case is pending before another court concerning the same violation of competition law, a plaintiff may file a lawsuit in that court (Article 12 of the Damage Act). In addition, in order to accelerate the handling of trials and the uniformity of rulings, if multiple cases for the same violation are pending before multiple courts of first instance, each of these courts may request the others to refer their cases to it for joint adjudication (Article 13 of the Damage Act).

2.3 Impact of Competition Authorities

Pursuant to Article 30 of the Damage Act, a civil court is bound by a final decision of the OCCP finding a violation of the competition law.

The Damage Act does not explicitly provide that a civil court is also bound by the decisions of competition authorities of other EU member states, nor does it refer to decisions of the European Commission. A civil court may, however, recognise a violation of competition law found by a competition authority of another member state on the basis of a presumption of fact (Article 231 of the Polish Civil Procedure Code). In addition, a plaintiff presenting evidence in support of its claim may submit a decision of a foreign competition authority for consideration by the court. With regard to a decision of the European Commission, the principles of uniform application of EU competition law set forth in Article 16(1) of Council Regulation (EC) No 1/2003 of 16.12.2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.01.2003, pages 1–25) apply. When a court rules on damages for violations of Article 101 or 102 of the TFEU, which are already the subject of a Commission decision, civil courts in the EU may not issue rulings contrary to the decision adopted by the Commission. 

When national courts rule on agreements, decisions or practices under Article 101 or Article 102 of the TFEU which are already the subject of a Commission decision, they cannot adopt rulings counter to the Commission’s decision. Moreover, Polish courts must also avoid giving decisions which would conflict with a decision contemplated by the Commission in its initiated proceedings. In such a scenario, a national court may assess whether it is necessary to stay its proceedings. This obligation is without prejudice to the rights and obligations under Article 234 of the Treaty (see: Article 16(1) of Regulation 1/2003).

A court may oblige the OCCP to disclose the evidence it had gathered in an investigation. In addition, at the request of the court, the OCCP or the competition authority of another EU state may, under certain conditions, assist the court in determining the amount of damages. 

2.4 Proof

A plaintiff must show that there was a violation of competition law that caused the damage. Once a plaintiff has established that there has been a violation of competition law, the burden is on the defendant to prove that the violation did not occur, that the violation did not cause any harm, or that the undue burden caused by the violation was passed on to the plaintiff’s buyers.

Regarding the existence of a violation, a civil court is bound by a final and non-appealable OCCP decision finding a violation (Article 30 of the Damage Act). With respect to decisions issued by competition authorities of other EU member states, a court may recognise a violation of competition law found by an authority of a member state on the basis of a presumption of fact (Article 231 of the Polish Code of Civil Procedure). When ruling on a claim for damages arising from a violation of Article 101 or 102 of the TFEU that is already the subject of a European Commission decision, a civil court may not make a ruling contrary to the decision made by the European Commission.

There are rebuttable legal presumptions in the Damage Act. First, a violation of competition law (of either Article 101 or 102 of the TFEU and their equivalents in the Polish Competition Act) is presumed to cause damage (Article 7 of the Damage Act). This presumption in the Damage Act is broader than the presumption in the Compensation Directive, which limits the presumption of harm to cartel violations only (Article 17(2) of the Compensation Directive). Second, if a violation results in an overcharge, the direct purchaser is presumed to have passed on the overcharge to its customer – ie, the indirect purchaser (Article 4(1) of the Damage Act). This legal presumption of passing on an overcharge can only be invoked by an indirect purchaser when seeking damages directly from an infringer. 

2.5 Pass-On Defence

The Damage Act (Article 4) introduced a rebuttable presumption of passing on an overcharge to an indirect purchaser. This presumption establishes the principle that a direct purchaser of goods or services from an antitrust violator has shifted the excessive burden to an indirect purchaser to whom it has sold the affected products or services. In other words, a direct purchaser, by raising the price of its products or services, has shifted all or part of the overcharge to its customers and by doing so, has reduced its own harm. The burden of proving that the plaintiff has passed on the alleged overcharge to its customers is on the defendant (Article 4 of the Damage Act, Article 232 of the Code of Civil Procedure and Articles 12–14 of the Compensation Directive.

As mentioned in 2.4 Proof, the pass-on presumption can only be invoked by an indirect purchaser who seeks damages directly from the infringer.

3. Limitation Periods and the Duration of Litigation

3.1 Statute of Limitations

The rules on limitations are regulated by Article 9(1) of the Damage Act. It provides that a claim for compensation for damage caused by a competition law violation shall be time barred after five years from the date on which the aggrieved party learned or with due diligence could have learned about the damage and about the person obliged to repair it. The limitation period does not start running during the infringement period and cannot be longer than ten years from the date the infringement ceased. 

The Damage Act also provides that the limitation period is suspended when:

• the OCCP opens an explanatory or antimonopoly proceedings; or
• the European Commission or a competition authority of another EU member state opens proceedings on infringement of competition law – the subject of which is an infringement of competition law giving rise to claim for damages in question.

Pursuant to Article 9(3) of the Damage Act, the time during which limitation periods are suspended, as described immediately above, shall cease one year from the date of a decision finding a competition law infringement becomes final and non-appealable or the investigatory procedure is terminated in a different manner.

3.2 Typical Length of Private Antitrust Litigation

Depending on the circumstances of a specific case, it can take a court of first instance a few years to issue a judgment. Parties then may appeal to the court of second instance, and (depending on the case), may also be entitled to other extraordinary remedies such as a cassation to the Supreme Court. The Supreme Court will accept only cases based on the following grounds:

• A violation of substantive law through incorrect interpretation or incorrect application; or
• A violation of procedural rules if this defect could have had a significant impact on the outcome of the case.

4. Class and Collective Actions

4.1 Statutory Basis

The Group Claims Act of 17 December 2009 came into force on 19 July 2010. This Act concerns claims in cases in which one type of claim is sought by at least ten claimants. The scope of the Group Claims Act is concentrated on consumer rights cases, dangerous product liability cases and tort actions. Infringements of the Competition Act are torts that can be pursued by using the Group Claims Act.

A three-judge panel will decide upon the admissibility of a group claim. If the court admits a claim, it will order the publication (on the court’s website, on the websites of the parties or their representatives or in the press) of an appropriate announcement on the initiation of proceedings and will allow persons to join the proceedings within a period no shorter than one month and no longer than three months. Thus, the Group Claims Act uses the opt-in approach, which means that only those persons who expressly agreed to be included can be members of the group.

The Group Claims Act allows for claiming both pecuniary and non-pecuniary claims. Cases concerning pecuniary claims are allowed on the condition that the claimed value for each group member is unified, taking into consideration all common circumstances of the case. Thus, the amount of a claim must be generally unified for each member of the group, although the unification may be done in sub-groups. A sub-group must consist of at least two persons (these restrictions do not, however, apply to consumer claims). 

A group must be represented by a claimant or representative, a person who is a group member or a consumer ombudsman. When a claim results from activity of financial institutions (eg, banks, insurance companies), a group may be represented by the Financial Ombudsman. Under the Group Claims Act, an attorney can be paid in the form of a contingency fee based upon the amount of the value awarded. An attorney’s fee cannot exceed 20% of the awarded amount.

A defendant has the right to request a court to order a claimant to pay a deposit as security for costs of the proceedings. A deposit cannot exceed 20% of the value of the claim On 29 August 2024, an amendment of the Group Claims Act came into force which adapts Polish law to EU Directive 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers. According to the new regulations, group actions to determine the violation of collective interests of consumers and to claim compensation for such violations can be filed in the name of consumers by their representative (a “qualified entity”), selected from among entities listed in the registers kept by the Polish Competition Authority and by the European Commission, pursuant to Directive 2020/1828. 

4.2 Opting In or Out

As explained in 4.1 Statutory Basis, Poland uses an opt-in system for collective actions.

4.3 Direct/Indirect Purchasers

Both direct and indirect purchasers can pursue their claims through class actions. The Group Claims Act regulates civil judicial proceedings in cases in which claims of one type are asserted, based on the same or the same kind factual basis. Class proceedings in cases involving monetary claims are allowed only if the amount of the claim of each member of the group has been unified by equalising the amount of the claim asserted by the members of the group or subgroup. Unification of the amount of claims can be done in subgroups of at least two persons. In cases involving monetary claims, the action may be limited to a request to establish the defendant’s liability for a specific event or events. In such a case, a plaintiff is not required to prove a legal interest in the determination. When granting the demand to determine the liability of the defendant for a specific event or events, the court shall determine the circumstances common to the members of the class, which are the prerequisites of the claims asserted by them. 

4.4 Class Certification

For claims to be brought as group proceedings, there be at least ten claimants and the claim must be based on the same factual basis.

As explained in 4.1 Statutory Basis, the Group Claims Act permits both pecuniary and nonpecuniary claims. Cases concerning pecuniary claims are allowed on the condition that the claimed value for each group member is unified, taking into consideration all common circumstances of the case. Thus, the amount of a claim must be generally unified for each member of the group, although the unification may be done in sub-groups. A sub-group must consist of at least two persons.

5. Choice of Jurisdiction

5.1 Rules on Jurisdiction and Applicable Law

Pursuant to the Polish Code of Civil Procedure, if a defendant has a domicile or habitual residence or seat in the Republic of Poland, the case falls within national jurisdiction.

If a case for the same claim between the same parties is pending before a court of a foreign state earlier than before a Polish court, the Polish court shall suspend the proceedings. However, the court shall not suspend the proceedings if the judgment to be rendered by the court of the foreign state will not meet the prerequisites for its recognition in the Republic of Poland, or the proceedings before the court of the foreign state cannot be expected to be validly concluded within a reasonable period of time. Upon completion of the proceedings before the court of a foreign state, the court shall discontinue the proceedings if the judgment of the court of a foreign state is subject to recognition in the Republic of Poland; otherwise, the court shall decide to resume the proceedings.

6. Disclosure/Discovery

6.1 Disclosure/Discovery Procedure

The Polish legal system does not provide for an equivalent of the pre-trial discovery that exists in common law legal systems. There is no obligation under Polish law for parties to exchange or to provide one another with documents or information prior to the commencement of litigation.

The Damage Act provides specific rules on the limitation of the disclosure of evidence.

According to Article 17 of the Damage Act, for the purpose of damage proceedings, a claimant may request the court to order the defendant, a third party or a competition authority (which, as defined in Article 2.5 of the Damage Act, means the Commission, OCCP or a competition authority of another EU member state), to disclose relevant evidence in their possession. The same request for disclosure of evidence may be made by a defendant, provided that the evidence thus obtained will be used only for the purpose of the pending proceeding. A court is entitled to reject a motion for the disclosure of evidence if the motion does not meet the requirement of proportionality.

In line with the Compensation Directive, the Damage Act provides for particular limitations on the disclosure of evidence included in the files of a competition authority. Such evidence may be obtained only if it is impossible or excessively difficult to obtain it from other sources.

The Damage Act prohibits the disclosure of leniency statements and settlement submissions. Whereas information prepared by a natural or legal person specifically for the proceedings of a competition authority, information that a competition authority has drawn up and sent to the parties during its proceedings and withdrawn settlement submissions, may be disclosed only after the completion of proceedings before a competition authority. The above-mentioned documents obtained by a party to the court proceeding contrary to the above-mentioned rules cannot constitute evidence for the purpose of civil proceedings. Additionally, the Damage Act clearly sets out that evidence other than that mentioned above, which an individual or legal person obtained exclusively by access from a case file of a competition authority may only be admissible at the request of that person or its legal successor (Article 29 of the Damage Act). 

6.2 Legal Professional Privilege

Pursuant to Polish regulations, a legal advisor and an advocate are obliged to keep secret everything he or she learns in connection with providing of legal assistance. Pursuant to the Polish Code of Civil Procedure, a legal advisor/advocate has the right to refuse to answer a question if the legal professional privilege would be violated and a court cannot exempt him or her from this obligation.

6.3 Leniency and Settlement Agreements

The Damage Act provides the rules for and limits of admissibility of evidence obtained from a competition authority’s proceedings. With regard to evidence in a competition authority’s files, a civil court may order the Authority to disclose evidence which can be used to establish fact relevant in a civil case and only if it is impossible or excessively difficult to obtain it from an opposing party or a third party (Article 17(2)). Specific conditions of admissibility concern documents obtained by a competition authority within leniency and settlement procedures. Leniency statements and settlement proposals are not subject to disclosure (Article 18(1)) whereas information prepared by a natural or legal person specifically for the purposes of competition investigatory proceedings, information prepared by a competition authority and provided to parties during such proceedings, and withdrawn settlement proposals may be disclosed only after the proceedings before the competition authority have ended (Article 18(2)).

Furthermore, in addition to the Damage Act’s limitations on the admissibility of leniency and settlement documents, the Competition Act sets out rules to protect such documents in the

OCCP’s files against unauthorised disclosure. The OCCP may impose a fine of up to 50 times the average remuneration on anyone who used such information and documents in a way that violated the restrictions on their use (Article 108(5) of the Competition Act). 

7. Witness and Expert Opinions

7.1 Witness Procedure

The procedure for examining a witness is set out in the Polish Code of Civil Procedure. As a rule, a witness gives testimony orally. He or she answers the court’s questions and then those of each party. A court assistant prepares a protocol of the witness’ testimony.

7.2 Expert Witness Role and Procedure

The use of evidence and testimonies of experts and economists is not uncommon. An important distinction, however, is the weight placed on the evidence provided by a private expert; that is, one called by a party as opposed to a court-appointed independent expert. There is no general limitation placed upon a party from hiring an expert to draft and submit an opinion on the claimed violation or damages. Such an expert is referred to as a private or party-appointed expert. The weight placed on such evidence is low and considered to be on par with the weight of any witness called by a party. The reason is that the Polish judicial system assumes that a private expert will be “biased towards the party that calls (and usually commissions) him or her, and thus such opinions will be considered as part of that party’s evidential submissions.

Either party or the court itself may call for the appointment of an independent expert witness from the official list of court expert witnesses. The evidential weight attributed to the testimony of such a witness is higher than that attributed to a private expert witness. Typically, a court will consult with the parties before choosing and instructing an expert. A court-appointed expert most often submits a written opinion to the court. The selection of the expert as well as the content of the opinion may be challenged by the parties. 

8. Damages

8.1 Damages: Assessment, Passing on and Interest

Pursuant to Article 31(1) of the Damage Act, when determining the amount of damage caused by infringement of competition law, the court may use the guidelines contained in Commission Communication 2013 / C 167/07 on quantifying damage in pursuing claims for damages for breach of Article 101 or Article 102 of the TFEU and the guidelines of the European Commission, referred to in Article 16 of the Compensation Directive.

Competition private damage claims are calculated on the basis of the principle of full compensation.

It is a defendant’s burden to prove that the claimant passed on the alleged overcharge to its own customers (Article 4 of the Damage Act, Article 232 of the Code of Civil Procedure, and Articles 12–14 of the Compensation Directive).

If the basis for the determination of compensation is prices from a date other than the date of determination of compensation, the injured party is also entitled to statutory interest from the date on which the prices were the basis for the determination of compensation until the due date of the claim for compensation.

9. Liability and Contribution

9.1 Joint and Several Liability

An aggrieved party has the right to claim full compensation from the infringer, and the infringer is obliged to compensate any damage caused to anyone by infringing competition law, unless he or she is not at fault (Article 3 of the Damage Act). If damage is caused by a tort (a breach of competition law is considered a tort) for which several persons are responsible, their liability is joint and several (Article 441, Section 1 of the Civil Code).

Article 5 of the Damage Act contains provisions on joint and several liability which are the equivalent of Article 11(2)-(6) of the Compensation Directive. Regarding companies released from penalty because of leniency, while they are jointly and severally liable towards their direct and indirect purchasers as well as to their direct and indirect suppliers, they are liable towards other victims only when it is impossible to obtain full compensation from other infringers (Article 5(2) of the Damage Act).

The liability of a small or medium enterprise is limited according to Article 5(1) of the Damage Act. Such an entity shall be jointly and severally liable only towards its direct purchasers or indirect purchasers or direct suppliers or indirect suppliers if:

• its share in the relevant market is lower than 5% throughout the entire duration of the infringement; and
• its joint and several liability, without the limitations resulting from this provision, would constitute an irreversible threat to the economic viability of the business and would result in a total loss of the value of the enterprise.

This rule does not apply when the small or medium enterprise played a leading role in the infringement or induced others to participate in it. The limitation of liability also does not apply if such entity was previously found in violation of competition law (Article 5(1) of the Damage Act).

9.2 Contribution

Under general rules, if the damage was the result of an action or omission to act by several persons, the person who repaired the damage may demand from the others the return of the appropriate part, depending on the circumstances, and in particular on the fault of a given person and the extent to which he or she contributed to the damage (Article 441, Section 2 of the Polish Civil Code). This regulation applies also under the Damage Act.

However, the Damage Act regulates separately limitations of contribution by certain third parties in the amount of damages already compensated by one of the perpetrators of the infringement. The Damage Act limits the right of the infringer who already compensated the damage to demand contributions from the leniency applicant exempted from penalty. From such an leniency applicant, compensation may not be demanded in an amount higher than the amount of damage caused by that entity to its direct purchasers or indirect purchasers or direct suppliers or indirect suppliers (this limitation does not apply if the damage concerns the injured party who is not a direct purchaser or an indirect purchaser or a direct supplier or indirect supplier of any of the infringers who are jointly and severally liable) (Article 5(3) of the Damage Act).

10. Other Remedies

10.1 Injunctions

Injunctive relief is available under the Polish Civil Procedure Code. A civil court may grant injunctive relief if a plaintiff has established the likelihood of the validity of its claim and its standing. As an expedited, non-formalised proceeding, it is assumed that prima facie, evidence of the existence of a claim is not required, but it does not mean that every assertion by a claimant constitutes evidence of the claim. The claim must be supported by source evidence. If a first instance civil court grants injunctive relief, the other party can appeal the ruling. If the party who has been awarded injunctive relief fails to file a full claim within a defined time, or its claim is otherwise dismissed, the defendant, within one year after the claim arises (collapse of the injunctive relief), is entitled to a claim for damages caused by the execution of the injunctive relief.

10.2 Alternative Dispute Resolution

In civil proceedings, parties may resolve their dispute amicably either in court or otherwise. A party may attempt to settle a case amicably by filing a call for a settlement. In its call, a party presents a proposal for its conciliatory resolution. There is no obligation for the other party to agree to the proposed settlement nor for a court to accept the settlement proposal.

Mediation is a voluntary, confidential method of dispute resolution in which the disputing parties, with the help of an independent and neutral mediator, themselves come to an agreement.

Pursuant to Article 6 of The Damage Act, if an injured party concludes a settlement with one of the infringers, who is jointly and severally liable, the injured party may claim from the other infringers compensation for the damage minus the amount corresponding to the amount that the settling would have been obligated to pay. To the extent that the injured party cannot obtain compensation from the other infringers, it may demand such compensation from the settling infringer, unless the settlement agreement provides otherwise. 

11. Funding and Costs

11.1 Litigation Funding

Third-party financing is not expressly prohibited by Polish law. Based on publicly available information, the practice of third-party financing of litigation takes place in Poland, but to a limited extent and without specific regulations. It concerns the financing of franking cases, free consumer credit and compensation by alternative legal service providers. The authors are unaware if, at the time of drafting this chapter, such funding has been used in damage competition law claims.

11.2 Costs

A court decides on the costs in any decision concluding the case before each instance. As a rule, the losing party is obliged to reimburse the opponent, at the opponent’s request, those costs required for the proper enforcement of its rights and/or defence (“trial costs”).

Necessary trial costs of a party represented by an attorney include legal fees, but not more than the fee rates set by separate regulations, and expenses of one attorney, court costs and the costs of the party’s appearance in person ordered by the court. If a party does not have an attorney, the necessary costs of litigation include the court costs paid by the party, the cost of travel to the court by that party, and the equivalent of the earnings lost by appearing in court. In addition, parties represented by an attorney are reimbursed the costs in an amount according to the legal provisions on attorney’s fees. 

12. Appeals

12.1 Basis of Appeal

Pursuant to the Polish Code of Civil Procedure, a judgment of a court of first instance can be appealed to a court of second instance.

An appeal should be based on specific grounds that justify the modification or necessity of revoking the judgment under appeal. The appellate charges may concern violations of procedural law, defective resolutions of factual issues and improper resolutions of legal issues.

13. Looking Forward

13.1 Legislative Trends and Other Developments

The Compensation Directive’s presumption of harm is limited to cartel infringements. Article 17(2) of the Directive reads, “[i]t shall be presumed that cartel infringements cause harm. The infringer shall have the right to rebut that presumption”.

Notably, the Damage Act’s scope of the presumption of harm is wider than that that of the Directive as it applies not only to infringements caused by cartels but to every infringement of competition law, including prohibited vertical agreements and abuses of a dominant position.

The existence of a presumption of harm in damage actions concerning abuse of dominance, for instance, is a factor that singles uniqueness and attractiveness of the Polish legal system to potential plaintiffs of damage claims based upon Article 102 TFEU and Article 9 of the Polish Competition Act damage actions. 

The OCCP has issued more decisions finding violations of Article 101 than of Article 102 of the TFEU (or of their Polish law equivalents). Thus, it makes sense that if a potential plaintiff wishes to bring a damage claim based upon an abuse of dominance, most likely, it will have to file a stand-alone action. Thanks to the Damage Act’s broad presumption of harm, the likelihood of succeeding with such a damage action will be enhanced.

 

Poland – Trends and Developments

“By Object” Restrictions of Competition in Polish Jurisprudence: A Less Economic Approach

The objective of this article is to draw attention to how restrictions of competition by object are interpreted in recent Polish jurisprudence in contrast to the latest, but already firmly rooted approaches of EU judgments.

The extent of private antitrust litigation depends to a large extent on the level of public enforcement of competition law, both in quantitative and qualitative terms. From this perspective, the case law resulting from the enforcement by the President of the Office of Competition and Consumer Protection (OCCP) is extremely important for the development of private enforcement in Poland. In view of the fact that antitrust cases before the OCCP are predominantly based on national provisions prohibiting competitionrestricting practices (Articles 6 and 9 of the Act of 16 February 2007 on Competition and Consumer Protection, which are the equivalents of Articles 101 and 102 of the Treaty on the Functioning of the EU (TFEU), the interpretation of the premises of these prohibitions by the OCCP and by the reviewing courts are of significant importance for private antitrust litigation.

Brief characteristics of the Polish antitrust case law

For the purposes of this article, the following characteristics of Polish antitrust case law are important:

• For years, the scale of public enforcement of competition law in Poland has remained at a moderate level with no more than a dozen OCCP antitrust decisions per year (the annual number of decisions issued: nine in 2023; eight in 2022; thirteen in 2021; fifteen in 2020; twelve in 2019; and eight in 2018).
• Cases are mainly investigated solely on the basis of national law (Articles 6 or 9 of the Competition Act). Decisions in which the OCCP identifies a possible effect on trade between EU member states and consequently applies Articles 101 or 102 of the TFEU remain in the minority (three decisions in 2023, three in 2022, six in 2021, four in 2020, only one such decision in 2019, and two decisions in 2018).
• Most of the antitrust cases resolved by the OCCP concern practices belonging to categories of conduct that are traditionally classified as the most harmful to the proper functioning of normal competition – eg, price restrictions in distribution chains (“resale price maintenance, or RPM) and bid rigging, which are believed to restrict competition “by object” and therefore, do not need to be more profoundly analysed (as opposed to “effect based” restrictions where harmful effects of an agreement have to be analysed and presented by the competition authority – more about this distinction below).

It may be a consequence of the above circumstances that the OCCP assesses them quasiautomatically as by object infringements, ly noticing the nuances and differences among individual cases and practically excluding the possibility that any particular practice of this type is not a restriction of competition. Interestingly, the same position is taken by courts, which, in a majority of current judgments, follow a more formal approach. The courts tend to disregard the economic context of a case and simply prohibit an agreement if it has the characteristics described in the law (eg, it concerns price fixing).

The Polish courts’ approach to the assessment of agreements between undertakings (presented in more detail below) is, however, not in line with the dominant trend in EU jurisprudence according to which a competition authority is obliged to conduct certain types of inquiries before it concludes that an agreement restricting competition is “by object”. 

“By object” restrictions – the EU approach

Let us keep in mind that in EU competition law, the distinction between agreements restricting competition “by object” and “by effect” is strongly entrenched and is of significant practical importance. Types of conduct classified as restrictions “by object” are viewed as more obvious infringements. This lowers a competition authority’s evidentiary obligations: it does not have to prove real market effects of the charged anti-competitive conduct. Whereas, in each case of an agreement that does not fit in the “object box”, a competition authority must prove the case-specific economic and legal contexts of such an agreement. Thus, a competition authority must make a complex competition assessment that takes into account not only the facts of an agreement, but also the specificities of the relevant market, the position of the parties in that market and the duration of the investigated agreement (C-345/14 SIA Maxima Latvija, paragraph 31).

The interpretation of “by object” restrictions by the EU courts evolved over a number of years. The current case law is far from the EU’s initial, formalistic approach, when being included in the “object box” was equivalent to being illegal. The more recent rulings of EU courts, however, are now clear that including a specific type of agreement in the category of “by object” restrictions does not exempt a competition authority from making an analysis of the economic and legal contexts of the case. The context should be determined by analysing “the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question” (C-307/18 Generics (UK) Ltd, paragraphs 67–68). 

One of the latest rulings in this line of jurisprudence is devoted to RPM and confirms that even this (so far) “classic” violation of Article 101(1) TFEU may not harm competition to a sufficient degree to merit being a “restriction of competition by object” (C-211/22 Super Bock Bebidas, paragraphs 37 and 42). In this judgment, the court ruled that in order to find that an RPM agreement restricts competition “by object,” it needs to be determined that an agreement presents a sufficient degree of harm to competition. Such a determination, however, can be made only after an assessment of:

• the nature of the agreement’s terms;
• the agreement’s objectives; and
• all the factors that characterise the economic and legal context of which the agreement forms a part (C-211/22 Super Bock Bebidas, paragraphs 37 and 43).

Such factors may include the nature of the goods or services affected, and the actual conditions of the functioning and structure of the market or markets in question (C-211/22 Super Bock Bebidas, paragraph 35).

“By object” restrictions – the prevalent Polish approach

Polish jurisprudence has taken a completely different approach from that of the EU. With a few exceptions (see the Minority approach section below), Polish courts have generally excluded the possibility that an agreement belonging to the category of conduct recognised, to date, as a restriction “by object”, could, in some specific case, be incapable of distorting competition. This approach is clearly evident in the Polish Supreme Court’s jurisprudence concerning RPM agreements.

In its most recent jurisprudence, the Polish Supreme Court: 

• assumed that price agreements “undoubtedly violate the public interest” (judgment of the Supreme Court of 9.10.2019, I NSK 89/18);
• found that the very existence of a vertical price fixing clauses in a distribution agreement has a “clearly anti-competitive” nature because “the setting of a fixed resale price generally results in the retail price being set at a different, usually higher, level than in the absence of such a restriction” (judgments of the Supreme Court of 8.11.2023, II NSKP 6/23 and of 29.01.2019, I NSK 3/18);
• stressed that “each time, the conclusion of an agreement from the category of hard-core restrictions” (in which the court included RPM) should be treated with “a sanction provided for in the Competition Act” (judgment of the Supreme Court of 8.11.2023, II NSKP 6/23);
• emphasised that “agreements fixing resale prices raise doubts from the point of view of the objectives of competition law in abstracto, which justifies the assumption that such agreements fall into a category of agreements which are restrictive by-object” (judgment of the Supreme Court of 15.02.2019, I NSK 10/18);
• ruled that there is no need to examine the economic context of an RPM agreement, because “the economic context cannot exclude the obligation to respect the standards set by the legislature for the legal assessment of such agreements” (judgments of the Supreme Court of 15.02.2019, I NSK 10/18 and of 15.02.2019, I NSK 11/18);
• presented the position that the competition assessment of RPM is not conditioned upon making a detailed assessment of parties’ shares in the relevant market – and therefore, “it would be excessive to require detailed arrangements regarding market shares of individual parties to the agreement” (judgment of the Supreme Court of 5.12.2019, INSK 1/19).
• stated that it is incorrect to claim that the classification of an RPM agreement as a restriction of competition may be determined by the position of the participants in that agreement in the relevant market, and in particular, the size of their market shares (judgment of the Supreme Court of 15.10.2019, INSK 72/18); and
• questioned an interpretation of Article 6 of the Polish Competition Act (equivalent of Article 101(1) of the TFEU) that could allow for the recognition that “there may be vertical agreements setting fixed or minimum resale prices which are not covered by the hypothesis of this provision on the grounds that they do not have the capacity to distort competition” – according to the Supreme Court, it is impossible to find that an RPM agreement does not violate the law, as the same linguistic interpretation of Article 6 of the Competition Act proves that if the object of an agreement is anti-competitive, it infringes the law with no need to measure the effects (judgment of the Supreme Court of 5.12.2019, I NSK 1/19).

Based on the examples presented above, one can speak of a judicial approach that is distrustful of the possibility of finding pro-competitive arguments for agreements that belong to a category of agreements already considered anticompetitive, either by statute or in case law (object box). In other words, with such a judicial approach, a company charged with RPM has a rather low chance of succeeding, with economic arguments, in persuading a Polish court to overturn a decision or a lower court judgment finding an illegal RPM agreement. Only in a very few judgments have the courts agreed that, in limited circumstances, some vertical pricing agreements may also have pro-competitive effects. In these judgments, the courts referred to examples from the European Commission’s vertical guidelines (eg, judgments of the Supreme Court of 15.10.2019, I NSK 72/18 and of 29.01.2019, I NSK 3/18), which may justify applying an individual exemption: Article 101(3) of the TFEU or its Polish equivalent, Article 8 of the Competition Act (judgment of the Supreme Court of 23.11.2011, III SK 21/11). 

Minority approach

Against this background, judgments deviating from the formalistic line of jurisprudence and recognising the value of analysing the economic and legal context when examining the nature of an agreement, are few. One of only a few recent judgments that did confirm the importance of examining the economic context (and its possible impact on the final assessment of whether the agreement restricted competition) is the judgment of the first-instance antitrust court (the Court of Competition and Consumer Protection, or CCCP) from 2019 in an RPM case (judgment of 2.12.2019, XVII AmA 23/17), which, however, was subsequently overturned on appeal (judgment of the Appeal Court in Warsaw of 29.04.2021, VII AGa 352/20). In its judgment, the CCCP ruled that the market context be taken into account when assessing vertical price agreements. The Court justified this requirement by ruling that “only market practices that, due to their nature, are capable of causing negative and noticeable effects on the relevant market should be sanctioned”. In this case, the CCCP took into account the corporate appellant’s eco nomic analysis, which showed that even if there were a vertical pricing agreement within its distribution network, “the economic context belied its anti-competitive nature”. On this basis, the CCCP overturned the OCCP decision finding the RPM agreement anti-competitive. Unfortunately, the Appeal Court took a much more formalistic approach and simply held that all RPM agreements are illegal by their same object and there is no need to examine the market nor procompetitive aspects of a given agreement. The appellate court objected to the notion that vertical price agreements could lack the potential to distort competition. 

It is worth noting that in its most recent judgments, the Supreme Court held that in “by object” cases, the OCCP is legally obliged to properly define the relevant market “with due diligence, but, however, non-compliance with this obligation cannot result in the annulment of the OCCP decision, because hard-core restrictions should be treated with a sanction provided for in the Competition Act” (judgment of the Supreme Court of 8.11.2023, II NSKP 6/23). This ruling confirms the moderate importance to the Supreme Court of economic factors in the assessment of agreements that were found to be in the “by object” category.

Consequences

The consequence of the above-described state of affairs is that Polish courts remain faithful to an autonomous standard of assessing agreements that restrict competition, and this standard is not fully consistent with the European approach. When EU and Polish interpretations of the concept of “restriction of competition by object” diverge, the same agreements may be assessed differently depending on whether the case is dealt with by the OCCP or by the Commission or a competition authority from another EU member state.

This may also have an impact on the jurisprudence of Polish civil courts in damage claim cases. Firstly, in follow-on cases, the Polish courts will rule upon the basis of judgments in Polish antitrust cases. Secondly, when faced with stand-alone damage actions, and not having much expertise in competition law, Polish courts will most likely rely on Polish national case law, which as explained above, emanates from the OCCP’s decisions, and does not fully reflect the EU approach to the concept of “by object” restrictions.

In light of the real problems stemming from judicial divergence within the EU, it is expected that the Polish courts will realise the need to bring their approach closer to that of current EU jurisprudence, in which the inclusion of an agreement in the category of “restrictions of competition by object” may be overturned based on analysis of an extensive catalogue of factors constituting the economic and legal context of the examined conduct. Such evidence, as well as proven and relevant pro-competitive effects, should be capable of rebutting a presumption of an agreement’s anti-competitive object.

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