• Competition-restricting practices place all of us at a disadvantage, for example by forcing us to pay higher prices for the products that we purchase.
• Today, however, claiming damages for the losses incurred in this regard has become even easier than before.
• The new Act on private enforcement of competition law enters into force from this day onwards.

Every year, the UOKiK issues a few dozen decisions pertaining to agreements restricting competition or to abuse of a dominant position. However, these decisions do not result in any damages being awarded to those who have suffered a loss as a result of such unlawful practices, be it an undertaking that was placed at a disadvantage due to the actions of a market tycoon or a consumer who has been charged excessive prices for products covered by a price-fixing arrangement. The new Act on private enforcement of competition law is intended to change this, however, allowing for a more robust enforcement of claims by all those who were aggrieved by any infringements of competition law. The new regulations have been created by the Ministry of Justice in cooperation with the UOKiK.

– Once these new regulations enter into force, the protection of competition will no longer be the exclusive domain of the Competition Authority due to the fact that a new, private law route of enforcement will become available. The Competition Authority continues to act in the public interest by imposing penalties for specific unlawful practices; from this day, however, the individual aggrieved parties will also be able to enforce their own claims in an effective manner — says Bernadeta Kasztelan-Świetlik, Vice-President of the UOKiK.

Convenient solutions for the aggrieved parties

Anyone who has suffered a loss as a result of unlawful practices will be able to bring an action, including both consumers and the counterparties or competitors of the undertakings which have infringed the provisions of competition law. The claims will be examined by regional courts regardless of the value of the claim. 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. The act shall not apply to the infringements of the provisions of the Act on combating unfair competition.

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 option to bring an action will be available not just to the aggrieved parties themselves, but also to their representatives — associations of consumers or undertakings.

The regulations intended to make it easier to enforce claims for damages also include the presumption of culpability on the part of the perpetrator of the infringement as well as the presumption that the infringement of competition law is the cause of the losses incurred. All this means that the burden of proof that no infringement of the provisions of applicable laws has taken place will rest upon the defendant. Furthermore, the court examining the given case shall be bound by the findings contained in the final decision of the UOKiK in which the given practice was found to have restrictive effects on competition.

Disclosure of evidence

The new regulations introduce a novel measure to the Polish civil law in the form of the application for disclosure of evidence. 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 undertaking 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 as having been duly ascertained even in the absence thereof.

Private enforcement and the leniency programme

The new law also extends the scope of rights of those undertakings that have taken advantage of the leniency programme. Under the new regulations, the UOKiK shall not be allowed to disclose the declarations made by the undertaking which has decided to cooperate with the authorities. Furthermore, claims may only be enforced by those aggrieved parties which formed part of the supply or service chain of such undertaking (i.e. direct or indirect purchasers or suppliers). The entities referred to above shall only be liable vis-à-vis other aggrieved parties (such as consumers) where a full amount of damages cannot be successfully obtained from the other participants of an anti-competitive agreement.

The Act on private enforcement of competition law enters into force on June 27, 2017.

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]

Twitter: @UOKiKgovPL