POLAND Law and Practice Contributed by: Dorothy Hansberry-Bieguńska, Sabina Famirska, Grzegorz Materna and Dorota Podsiedzik-Malec, Hansberry Tomkiel
“Unfair Competition Act”). However, the usefulness of the Unfair Competition Act is limited to cases in which the purpose of a plaintiff’s claim is to seek the discon - tinuation of alleged illegal conduct or the removal of its effects, but not damages. For an award of damages, it is the Damage Act that remains the proper legal basis for such cases as described earlier (Article 34 of the Damage Act and Article 18 (1a) of the Act on Combat - ing Unfair Competition). 2.2 Courts In matters of pursuing damage claims, issues of court jurisdiction – both in terms of subject matter and local jurisdiction ‒ are regulated by the Polish Code of Civil Procedure and the Damage Act. Damage actions fall within the competence of civil regional courts (Article 11 of the Damage Act). As a general rule, the court of local jurisdiction is where the defendant has its registered office or where the dam - age occurred (according to the Polish Code of Civil Procedure). The parties may also stipulate by agree - ment which court will have local jurisdiction. If a damage case is pending before another court concerning the same violation of competition law, a plaintiff may file a lawsuit in that court (Article 12 of the Damage Act). In addition, for the purpose of accelerat - ing the handling of trials and the uniformity of rulings, if multiple cases concerning the same violation are pending before multiple courts of first instance, each of these courts may request that the others refer their cases to it for joint adjudication (Article 13 of the Dam - age Act). 2.3 Impact of Competition Authorities A civil court is bound by a final decision of the presi - dent of the OCCP finding a violation of the competi - tion law (Article 30 of the Damage Act). The Damage Act does not explicitly provide that a civil court is also bound by the decisions of competition authorities of other EU member states, nor does it refer to decisions of the EC. A civil court may, how - ever, recognise a violation of competition law found by a competition authority of another EU member state on the basis of a presumption of fact (Article 231 of the Polish Civil Procedure Code). In addition, a plain -
tiff presenting evidence in support of its claim may submit a decision of a foreign competition authority for consideration by the court. With regard to a deci - sion of the EC, the principles of uniform application of EU competition law set forth in Article 16 (1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competi - tion laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4 January 2003, pages 1–25) apply. When a court rules on damages for violations of Article 101 or 102 of the TFEU, which are already the subject of an EC decision, civil courts in the EU may not issue rulings contrary to the decision adopted by the EC. Moreover, Polish courts must also avoid issuing deci - sions that would conflict with a decision “contemplat - ed” by the EC in proceedings it has initiated. In such a scenario, a national court may assess whether it is necessary to stay its proceedings. A court may oblige the OCCP to disclose the evi - dence it gathered in an investigation. In addition, at the request of the court, the OCCP or the competition authority of another EU state may – under certain con - ditions – assist the court in determining the amount of damages. 2.4 Proof A plaintiff must show that there was a violation of com - petition law. It is presumed that a violation of either Article 101 or Article 102 of the TFEU and their Polish law equivalents causes harm (Article 7 of the Damage Act). Once a plaintiff has established that there has been a violation of competition law, the burden is on the defendant to prove that the violation did not occur, that the violation did not cause any harm, or that the undue burden caused by the violation was passed on to the plaintiff’s buyers. Regarding the existence of a violation, a civil court is bound by a final and non-appealable OCCP decision finding a violation (Article 30 of the Damage Act). With regard to decisions issued by the competition authori - ties of other EU member states, a court may recognise a violation of competition law found by an authority of an EU member state on the basis of a presumption of fact (Article 231 of the Polish Code of Civil Procedure). When ruling on a claim for damages arising from a
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