POLAND Law and Practice Contributed by: Dorothy Hansberry-Bieguńska, Sabina Famirska, Grzegorz Materna and Dorota Podsiedzik-Malec, Hansberry Tomkiel
Hansberry Tomkiel Cegłowska Street 14/1 01-803 Warsaw Poland Tel: +48 22 428 12 80
Email: office@hansberrytomkiel.com Web: www.hansberrytomkiel.com
1. Introduction 1.1 Current Framework for Private Antitrust Litigation In addition to the public law enforcement of competi - tion law violations by the relevant authority in Poland (the president of the Office of Competition and Con - sumer Protection (OCCP)), a party can lodge civil dam - age actions. Private damage actions are regulated by the Act of 21 April 2017 on Claims for Compensa - tion for Damage Caused by Infringement of Competi - tion 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 on which a claimant is allowed to pursue a damage claim is a violation of: • Article 101 or Article 102 of the Treaty on the Func - tioning of the European Union (TFEU); or • the prohibitions against anti-competitive agree - ments and abuses of a dominant position set out in Article 6 and Article 9 of the Polish Act of 16 Febru - ary 2007 on Competition and Consumer Protection (the “Competition Act”). Owing to the nature, complexity, and long duration of an average damage action case, as well as the rela - tively low enforcement activity of the OCCP resulting in a small number of follow-on cases, there are still not many final judgments in the private enforcement of competition law. A significant number of private damage actions ruled upon by the courts still con - cern civil damage claims that – although filed after the effective date of the Polish Damage Act – concern
damages that presumably occurred prior to the Dam - age Act’s effective date. In such cases, the Damage Act nevertheless applies to a limited extent (eg, 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). 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 viola - tions 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 interpreta - tive 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 pre - vious statute of limitations regulations (which link the beginning of the limitation period with obtaining knowledge of the damage and perpetrators). How - ever, 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 stat - ute of limitations had already started to run pursuant
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