POLAND Law and Practice Contributed by: Dorothy Hansberry-Bieguńska, Sabina Famirska, Grzegorz Materna and Dorota Podsiedzik-Malec, Hansberry Tomkiel
3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations The rules on limitations are regulated by Article 9 (1) of the Damage Act. It provides that a claim for com - pensation for damage caused by a competition law violation shall be time-barred after five years from the date on which the aggrieved party learned or with due diligence could have learned about the damage and about the person obliged to repair it. The limitation period does not start running during the infringement period and cannot be longer than ten years from the date the infringement ceased. The Damage Act also provides that the limitation peri - od is suspended when: • the OCCP opens an explanatory or anti-monopoly proceedings; or • the EC or a competition authority of another EU member state opens proceedings for infringement of competition law – the subject of which is an infringement of competition law giving rise to claim for damages in question. Pursuant to Article 9 (3) of the Damage Act, the time during which limitation periods are suspended ‒ as described immediately above – shall cease one year from the date of a decision finding a competition law infringement becomes final and non-appealable or the investigatory procedure is terminated in a differ - ent manner. 3.2 Typical Length of Private Antitrust Litigation Depending on the circumstances of a specific case, it can take a court of first instance a few years to issue a judgment. Parties then may appeal to the court of second instance and, depending on the case, may also be entitled to other extraordinary remedies such as an appeal for cassation to the Supreme Court. The Supreme Court will accept only cases based on grounds relating to: • a violation of substantive law through incorrect interpretation or incorrect application; or
violation of Article 101 or Article 102 of the TFEU that is already the subject of an EC decision, a civil court may not make a ruling contrary to the decision made by the EC. There are rebuttable legal presumptions in the Dam - age Act. First, as indicated earlier, a violation of com - petition law (of either Article 101 or Article 102 of the TFEU and their equivalents in the Polish Competition Act) is presumed to cause damage. This presumption in the Damage Act is broader than the presumption in the Compensation Directive, which limits the pre - sumption of harm to cartel violations only (Article 17 (2) of the Compensation Directive). Second, if a viola - tion results in an overcharge, the direct purchaser is presumed to have passed on the overcharge to its customer – ie, the indirect purchaser (Article 4 (1) of the Damage Act). This legal presumption of passing on an overcharge can only be invoked by an indirect purchaser when seeking damages directly from an infringer. 2.5 Pass-On Defence The pass-on defence is available. A party that asserts a pass-on defence shall in principle carry the burden of proof. The Damage Act (Article 4) introduced a rebutta - ble presumption of passing on an overcharge to an indirect purchaser. This presumption establishes the principle that a direct purchaser of goods or services from an antitrust violator has shifted the excessive burden to an indirect purchaser to whom it has sold the affected products or services. In other words, a direct purchaser ‒ by raising the price of its products or services – has shifted all or part of the overcharge to its customers and, by doing so, has reduced its own harm. The burden of proving that the plaintiff has passed on the alleged overcharge to its customers is on the defendant (Article 4 of the Damage Act, Article 232 of the Code of Civil Procedure, and Articles 12–14 of the Compensation Directive). As mentioned in 2.4 Proof , the pass-on presumption can only be invoked by an indirect purchaser who seeks damages directly from the infringer.
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