POLAND Law and Practice Contributed by: Dorothy Hansberry-Bieguńska, Sabina Famirska, Grzegorz Materna and Dorota Podsiedzik-Malec, Hansberry Tomkiel
the authority to disclose evidence that can be used to establish relevant facts in a civil case and only if it is impossible or excessively difficult to obtain it from an opposing party or a third party (Article 17 (2) of the Damage Act). The are specific conditions of admis - sibility for documents obtained by a competition authority within leniency and settlement procedures. Leniency statements and settlement proposals are not subject to disclosure (Article 18 (1) of the Damage Act), whereas information prepared by a natural or legal person specifically for the purposes of competi - tion investigatory proceedings, information prepared by a competition authority and provided to parties during such proceedings, and withdrawn settlement proposals may be disclosed only after the proceed - ings before the competition authority have ended (Article 18 (2) the Damage Act). Furthermore, in addition to the Damage Act’s limita - tions on the admissibility of leniency and settlement documents, the Competition Act sets out rules to protect such documents in the OCCP’s files from unauthorised disclosure. The Competition Act clearly provides that a party to OCCP proceedings may not use its access to leniency statements or settlement proposals disclosed within such investigation for pur - poses other than exercising its rights of defence in court cases connected with the OCCP proceedings to which it is a party, regarding the division of the fine imposed jointly and severally on various compa - nies (Article 70 (2) of the Competition Act). Moreover, OCCP may impose a fine of up to 50 times the average remuneration on anyone who used such information and documents in a way that violated the restrictions on their use (Article 108 (5) of the Competition Act).
tion of a witness and to ask them questions. In certain special situations, as defined by law, other persons (eg, experts) may also be present. The court makes a free evaluation of the testimony of witnesses, taking into account all of the evidence collected. 7.2 Expert Witness Role and Procedure The use of evidence and testimonies of experts and economists is not uncommon. An important distinc - tion, however, is the weight placed on the evidence provided by a private expert (ie, one called by a party as opposed to a court-appointed independent expert). There is no general restriction placed upon a party from hiring an expert to draft and submit an opinion on the claimed violation or damages. Such an expert is referred to as a private or party-appointed expert. The weight placed on such evidence is low and con - sidered to be on par with the weight of any witness called by a party. The reason is that the Polish judicial system assumes that a private expert will be biased towards the party that calls (and usually commissions) them and thus such opinions will be considered as part of that party’s evidential submissions. Either party or the court itself may call for the appoint - ment of an independent expert witness from the official list of court expert witnesses. The evidential weight attributed to the testimony of such a witness is higher than that attributed to a private expert witness. Typically, a court will consult with the parties before choosing and instructing an expert. A court-appointed expert most often submits a written opinion to the court. The selection of the expert as well as the con - tent of the opinion may be challenged by the parties. 8. Damages 8.1 Damages: Assessment, Passing On and Interest Damages are typically assessed to compensate finan - cially assessable damage, including actual losses and lost profits, and may include interest from the time of harm until payment. Pursuant to Article 31 (1) of the Damage Act, when determining the amount of damage caused by infringement of competition law, the court may use
7. Witness and Expert Opinions 7.1 Witness Procedure
The procedure for examining a witness is set out in the Polish Code of Civil Procedure. As a rule, a wit - ness gives testimony orally. They answer the court’s questions and then those of each party. A court assis - tant prepares a protocol of the witness’ testimony. In exceptional cases, if the court so decides, a witness may provide testimony in writing. Parties to the pro - ceedings have the right to participate in the examina -
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