A. Availability of civil claims
1. Scope for civil claims in Poland
A private civil action can be brought on either a stand-alone or follow-on basis in respect of any type of practice that might be deemed anti-competitive under Polish or EU competition law (including abuse of a dominant position and anti-competitive agreements). Civil claims founded on a competition law infringement may be brought under the general damages provisions of the Polish Civil Code and the Civil Procedures Code or under the Act on Assertion of Claims in Class Actions 2010. (In Poland, there is no specific legislation on private competition litigation.)The approach to the issue and conduct of proceedings is the same for both corporations and individuals, whether domestic or foreign. Claims may include damages suffered outside of Poland, provided that the Polish court has jurisdiction to hear the claim.
2. Applicable limitation periods
The applicable limitation period for issuing a claim for damages in accordance with the Polish Civil Code and the Civil Procedures Code is three years from the date on which the potential claimant becomes aware of the following:
i) The occurrence of damage
ii) The identity of the person responsible for the damage or otherwise liable to compensate the claimant for that damage
The three-year period of limitation cannot apply more than ten years after the date on which the event causing damage occurred. Therefore, an action can no longer be brought even when the fact of infringement is actually discovered by the claimant if the behavior complained of came to an end ten years or more since discovery. The rules on limitation do not take account of circumstances in which the potential claimant does not become aware within 10 years of the event causing damage (for example, in the case of a long-running secret cartel). There is no period of limitation specifically tailored for civil claims arising out of competition infringement. Likewise, there is yet to have a case law on how the standard applicable limitation period might be interpreted in such circumstances. The Polish courts have interpreted the scope of limitation restrictively in other fields of law, such as in medical negligence, and it is likely that a strict approach on limitation will also be applied in damages cases resulting from cartels, to the extent that the EU competition law has not been infringed. As to how Polish law currently stands, it is not possible to sue participants in a cartel for damages resulting from their infringement if ten years or more have passed since the cartel was active. Hypothetically, one might argue that a long-stop on limitation is not consistent with the Manfredi judgment, but we are not aware of any such argument being raised before the Polish courts to date and so it is unclear whether this argument would succeed to circumvent the rules on limitation or not. Furthermore, when litigating a single continuous infringement that occurred over a period lasting more than ten years, a claimant may try to recover all damage, but the defendant may raise the statute of limitations and thus, the claimant will only be able to recover damage suffered within the limitation period.
A ruling by a Polish regional court on a private damages action may be appealed before an appeal court on grounds of either fact or law. In extraordinary cases, a claim might even be appealed further on a point of law before the Polish Supreme Court (cassation) if: (a) an important legal issue is involved; (b) there is a need to clarify the application of legal provisions that raise substantial doubts or where there is divergence in jurisprudence; (c) there is an invalidity of proceedings; or (d) the appeal is “obviously” justified.
4. Availability of class actions for infringement of competition law and/or damages in Poland
The Act on Assertion of Claims in Class Actions 2010 provides for a possibility for a group of ten people or more, who have claims of the same type and whose claims are based on one or the same factual ground, to file a collective claim. The act uses a Polish word that may be understood to refer to either individuals or legal entities. We are not aware of any competition damage claims brought in reliance on these provisions. Claims are brought by a single person or the local consumer ombudsman acting as representative for the group. The ombudsman is a public position. He is not obliged to agree to act in every case and he acts in the interests of individual consumers only. If a group of claimants cannot agree on the quantum of damages to be claimed, the group may restrict its claim to the establishment of the defendants’ liability and then bring individual actions in respect of damages owed to each of them. If the permission to bring a class action is granted, the court announces the class action in national press and other interested persons are permitted to opt in to the action. The announcement of court will indicate a deadline by which interested persons must opt in the proceedings (from one up to three months).
B. Conduct of proceedings and costs
5. Burden of proof
The claimant bears the burden of establishing that there has been an infringement of competition law. The claimant likewise bears the burden of demonstrating that “but for” that infringement, loss would not have been suffered. Every element of its claim, including all the circumstances justifying the claim and all of the facts to which the claimant attribute legal consequences (concrete loss and precise quantum), must be proven by the claimant. A decision issued by a competition authority may serve as strong evidence of infringement, but it is not yet accepted that a competition authority’s decision is a definitive proof of liability in Poland, despite past judgments of the Polish Supreme Court suggesting that a civil court may be bound by the decision of the competition authority. According to the current case law, the court assessing the case may make its own findings as to whether an infringement has occurred, regardless of whether a competition authority has already made a decision or finding in that case. In cases where a civil claim has been issued and a competition authority subsequently starts an investigation into the same matter, the court may stay proceedings pending determination of the investigation, but is not obliged to do so. Even if a decision of a competition authority exists and is accepted by the court as evidence that the infringement occurred, the claimant will still be obliged to prove that damage has been suffered as a result of the infringement. The court determines whether the given circumstances have been proved to a satisfactory standard. In cases where the exact amount of damage cannot be proved or where providing the proof is excessively difficult, the court is able to award an amount that it considers “appropriate.”
6. Joint and several liability of cartel participants
According to the Polish Civil Code, the general rule is that if more than one person might be deemed liable for an unlawful activity, those persons will be held jointly and severally liable for the resulting loss. Joint defendants are considered to share liability in full. This means that each defendant is deemed wholly liable for the resulting damage. A court will not apportion liability between defendants on judgment, as the court simply declares joint and several liability, rather than apportioning responsibility for damage between defendants. The main benefit to a defendant in joining other parties as defendants is that they will then be able to question the way that the proceedings are conducted by the first sued defendant in order to shift a greater portion of responsibility to the sued defendant.
7. Documents and evidence that can be used by claimants (for example, investigation evidence) and legal privilege
It is possible to apply to obtain non-confidential copy of infringement decisions from the Polish Competition Authority. The authority is obliged to disclose the so-called “public” information, but access to such information may be restricted if it contains business secrets. There is no standard disclosure obligation in Poland. However, a claimant may ask the court to order defendants to disclose specific documents and information necessary in order to support its claim. The claimant may also ask the court to require that these documents be treated as non-confidential (even in cases where documents are covered by legal privilege). On the other hand, from a practical point of view, it will be very difficult to identify documents that has to be disclosed, because in competition litigation, it is unlikely that the claimant will have knowledge of what documents exist as evidence of anti-competitive behavior.
8. Scope of pre-action disclosure
There is no scope to apply for pre-action disclosure under the Polish civil procedure.
9. Average length of time from issue of claim to judgment in Poland
Private enforcement is still emerging in Poland. Therefore, it is difficult to specify how long it might take to resolve a competition claim from issue to judgment at first instance, in comparison with other types of actions for damages. Generally, complex damages actions take from three to five years to reach judgment at first instance. As it is with other jurisdictions, the estimated time for any given case will depend on its complexity. Evidential issues concerning proof and amount of damages, such as a rise in competition claims, are particularly difficult and will likely add to the complexity of any case. Depending on the complexity of the case and the court assigned to hear it, the process of a competition claim may approximately take one to three years before it can be resolved.
10. Average cost from issue of claim to judgment in Poland
The claimant must pay a court fee upon filing the statement of the case. For competition claims, 5 % of the value of the claim ranging from PLN30 (approximately EUR7) to PLN100,000 (approximately EUR25,000) is the likely fee. The general rule on costs is that costs follow the event and the losing party pays the reasonable costs incurred by the winning party as well as its own costs. In determining what costs are reasonable, the Polish courts will objectively assess whether the costs incurred were necessary in conducting the case and the extent to which such costs can be justified. Even in cases where costs incurred are considered justified, the court may, nonetheless, in its discretion order that only part of costs should be paid by the losing party or it may even choose not to order any payment of costs at all. According to legal rules of procedure, this happens in “particularly justified cases” and it is for the judge to decide if the rule may be applied based on the circumstances of the case (e.g., this may be because the claimant has caused some costs to be incurred by virtue of its negligent or unfair behavior).
11. Third-party/alternative funding
There is no real precedent on the concept of third-party funding in Poland. There are no rules prohibiting such funding, but only the parties to the proceedings may ask for an order for recovery of the costs that such parties have incurred. It is possible to transfer the rights to a claim from one person to another, without the defendant’s consent. Therefore, it is theoretically possible for a third party to bundle claims in respect of damages claimed in competition litigation proceedings.
12. Alternative methods of dispute resolution
Parties can choose to submit claims to arbitration or mediation, provided that the case arises from contractual relations and that the parties have agreed to submit the disputed issue to arbitration or mediation. To date, there are no public reports of arbitration or mediation proceedings occurring in respect of competition law disputes in Poland.
13. Availability of damages and quantification
The Polish Civil Code provides for compensation of two types of losses – damnum emergens (actual loss arising) and lucrum cessans (lost profits). An injured party has the right to sue for both, although a claim is restricted to monetary compensation when restitution is impossible, or could involve excessive difficulties or costs for the defendant. The damages awarded are designed to restore the claimant to the position in which it would have been had the breach not been committed. Accordingly, damages cannot exceed the amount of loss actually incurred by the claimant. A “passing-on” defense does not exist in the Polish legal system. However, it should be emphasized that the principle of compensatio lucri cum damno has a similar effect upon the amount of damages recoverable by an injured party. According to this principle, and as noted above, the damages awarded cannot exceed the amount of loss incurred so, if passed on, no recoverable loss can in fact be demonstrated by the claimant. Interest is available and is applied from the date of lodging suit.
14. Punitive and exemplary damages
Punitive or exemplary damages are not available under Polish law.
15. Availability of interim or final injunctions in respect of an alleged competition law infringement
An interim injunction may be granted without notice in circumstances where a claim is established as having potential basis and it is likely that, in the absence of an interim injunction, it will be impossible or extremely difficult to enforce the judgment or achieve the objective of the proceedings. Under Polish law, an interim injunction may be granted prior to proceedings being commenced. However, if an interim injunction is granted in such circumstances, a statement of claim must be issued within two weeks. On the issue of the claim, the circumstances justifying the motion must be substantiated and the court will decide whether the injunction may be justified on an ongoing basis.
16. Other types of relief
There are no other types of relief available to claimants.
D. Emerging Trends
No actions for damages resulting from infringement of competition law have yet been publicly reported as issued in Poland. Without changes to the Polish Civil Code and the Civil Procedures Code (or the overarching European regime) to address some of the difficulties in bringing such actions, particularly in respect of burden of proof and causation, significant growth seems unlikely. [wpdm_package id=’4322′]