POLAND Law and Practice Contributed by: Dorothy Hansberry-Bieguńska, Sabina Famirska, Grzegorz Materna and Dorota Podsiedzik-Malec, Hansberry Tomkiel
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. An important issue often litigated has been the start - ing date of the statute of limitations in follow-on cases. Although the courts overwhelmingly accept the posi - tion that this date is the publication of the decision of the competition authority (in line with the jurispru - dence of the ECJ ‒ for example, case C-267/20, Volvo and DAF Trucks), according to one of the lines of juris - prudence, some Polish courts ruled that earlier dates (than the publication date of an OCCP decision) were the starting point. Such judicial decisions ruled that events – for example, numerous media reports and a public announcement on the OCCP website about the initiation of the investigation regarding particular cartel behaviour (judgment of the District Court in Warsaw, 28 October 2022, XX GC 74/19) – were determina - tive for establishing a starting date for the statute of limitations to run. 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 last of significant amend - ments to the Competition Act were enacted on 20 May 2023 and implemented into Polish law the Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 (the “ECN+ Directive”) – the aim of which was to empower the competition authorities of the EU member states to be more effec - tive enforcers and to ensure the proper functioning of the internal market. The prohibition of anti-competitive agreements in Pol - ish 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 anti-competitive agreements, similar to that in Article 101 (3) of the TFEU. Likewise, the Com - petition 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 Com - petition Act. In cases of a restriction of competition that represents a threat to the public interest, the OCCP institutes competition investigatory proceed - ings ex officio. As regards private enforcement, the governing Pol - ish law is the Damage Act, in force since 27 June 2017 (so far, without subsequent amendments), 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 Dam - age 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 perpetra - tor of the infringement is obliged to compensate the injured person for damages caused by the infringe - ment of competition law. With regard to establishing liability for the damages, the prerequisite of “fault” must be proven. A plaintiff can also rely on other legal grounds, appli - cable prior to the enactment of the Damage Act – in particular, the Polish Civil Code and the Act of 17 December 2009 on Pursuing Claims in Group Pro - ceeding (as a member of a class). In the event of an unfair trading practice being used (such as hindering others’ access to the market), which is also an infringement of the competition law, the company whose interest is threatened may also base its legal claims on the provisions of the Act of 16 April 1993 on Combating Unfair Competition (the
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