• The Council of Ministers adopted a new draft of the Act on private enforcement of competition law.
• Anyone who suffered a loss as a result of a collusion or abuse of a dominant position will now be able to claim damages for the losses incurred.
• Consumers who, for example, purchased products covered by a price-fixing arrangement will also be able to bring an action before a court.

​Competition-restricting practices have an impact on all of us. For instance, price-fixing arrangements make it impossible for consumers to purchase products at advantageous prices. Where a company which holds sway over the given market abuses its dominant position, it does not need to worry about the potential decrease in the popularity of its products among its customers which a price increase would otherwise have caused. Furthermore, a company holding a dominant position may dictate the market conditions without regard to its competitors, or even eliminate such competitors altogether. 

– Every year, we issue a few dozen decisions concerning competition-restricting practices. The financial penalties which may be imposed in such cases may amount to as much as 10% of the trader’s turnover. However, a decision of the Competition Authority does not result in the compensation of losses resulting from the prohibited conduct. Until now, the private enforcement of such claims was a very difficult task; this may change, however, once the new regulations enter into force – says Mr Marek Niechciał, President of the UOKiK.

Easier claims enforcement

The draft of the Act on private enforcement of competition law prepared by the Ministry of Justice in cooperation with the UOKiK has been approved by the Council of Ministers.

– Anyone who suffered a loss as a result of competition-restricting practices shall be entitled to claim compensation for such loss. The new act introduces regulations which make it easier to enforce claims for damages, including the presumption of culpability on the part of the perpetrator of the infringement, as well as the presumption that the infringement of the competition law is the cause of the losses incurred. The court shall be bound by the findings contained in a final decision of the UOKiK – the President of the Competition Authority explains.

A claim may also be filed – with the consent of the injured parties – by associations of traders or consumers. The claims shall be examined by the regional courts regardless of the amount claimed. The claims may pertain, inter alia, to the practices which the President of the UOKiK designates in its decisions as anti-competitive agreements or abuse of a dominant position, as well as to infringing activities with respect to which no proceedings or decisions of the Competition Authority have been initiated or issued so far. Furthermore, those who suffered a loss as a result of infringements of competition law identified by the European Commission, as well as – in certain cases – by the competition authorities of other EU Member States may also bring an action before the Polish courts. The act shall not apply to the infringements of the provisions of the act on combating unfair competition.

Easier access to evidence

The introduction of the application for disclosure of evidence is a novelty in Polish civil law. Under the new regulations, the court – acting at the request of a claimant who substantiates his or her claim and undertakes to use the evidence obtained exclusively for the purposes of the proceedings in question – may order the defendant entrepreneur in possession of evidence such as documents or e-mail correspondence to disclose such evidence. Where the party to the proceedings fails to comply with such request, the court may order such party to pay the costs of the proceedings regardless of the final outcome thereof or even consider the facts which were to be determined on the basis of the requested materials to have been duly ascertained.

The UOKiK: Supporting the courts

The court may also impose an obligation to provide the requested materials upon third parties which do not participate in the proceedings, including the President of the Office of Competition and Consumer Protection. The President of the UOKiK shall be under an obligation to disclose the evidence held where such evidence cannot be obtained in any other way. The above shall not apply to the declarations made within the framework of the leniency programme and – in cartel cases – to the conciliation proposals made to the President of the UOKiK in which the relevant entities undertake to discontinue all prohibited practices. Furthermore, the draft act also provides for a temporary prohibition on the disclosure of specific documents until the completion of the proceedings by the Competition Authority. In addition, the President of the UOKiK may also provide support to the courts in the course of determining the amount of loss resulting from the infringement of competition.

Limitation of liability

The act introduces two restrictions with respect to the entities which may bring an action before the court. In case of entities released from liability under the leniency programme, claims may only be enforced by the injured parties which formed part of the supply or service chain of such entities (i.e. direct or indirect purchasers or suppliers). The entities referred to above shall only be liable vis-à-vis other injured parties where a full amount of damages cannot be successfully obtained from the other participants of a competition-restricting agreement.

The restriction of the scope of entities which may enforce claims against direct or indirect trading partners also applies in case of small and medium enterprises (SMEs). The restriction in question, however, shall only apply where certain conditions are met: where the market share of the entrepreneur is below 5%, where the payment of damages would pose a risk of bankruptcy of such entrepreneur and where the SME was not the leader of the given arrangement and did not encourage others to participate in such arrangement, unless the given entrepreneur had already been found guilty of infringements of competition law at an earlier date.

Once approved by the Council of Ministers, the draft of the Act on private enforcement of competition law will be examined by the Polish Sejm (the lower house of the Parliament).

Additional information for the media:

Press Office of the UOKiK
pl. Powstańców Warszawy 1, 00-950 Warszawa
Phone: 695 902 088, 22 55 60 430
E-mail: [SCODE]Yml1cm9wcmFzb3dlQHVva2lrLmdvdi5wbA==[ECODE]

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