POLAND Law and Practice Contributed by: Dorothy Hansberry-Bieguńska, Sabina Famirska, Grzegorz Materna and Dorota Podsiedzik-Malec, Hansberry Tomkiel
the guidelines contained in Commission Communica - tion 2013/C 167/07 on quantifying damage in pursu - ing claims for damages for breach of Article 101 or Article 102 of the TFEU, as well as the EC guidelines referred to in Article 16 of the Compensation Directive. Private claims for damages arising from breaches of competition law are calculated on the basis of the principle of full compensation. It is a defendant’s burden to prove that the claimant passed on the alleged overcharge to its own custom - ers (Article 4 of the Damage Act, Article 232 of the Code of Civil Procedure, and Articles 12–14 of the Compensation Directive). If the basis for the determination of compensation is prices from a date other than the date of determina - tion of compensation, the injured party is also entitled to statutory interest from the date on which the prices were the basis for the determination of compensation until the due date of the claim for compensation. The Damage Act introduces the main rule of civil lia - bility for violations of competition law. An aggrieved party has the right to claim full compensation from the infringer, and the infringer is obliged to compensate any damage caused to anyone by its infringement of competition law, unless the infringer is not at fault (Article 3 of the Damage Act). It is, however, the Polish Civil Code that regulates the issue of liability in situa - tions where liability for damage rests with more than one person. If damage is caused by a breach of com - petition law for which several persons are responsible, their liability is joint and several (Article 441, Section 1 of the Polish Civil Code). All joint and several debtors remain liable until the aggrieved party is fully satisfied. This general rule of joint and several liability is sup - plemented by Article 5 of the Damage Act, which pro - vides the following. • Although companies released from penalty because of leniency are jointly and severally liable 9. Liability and Contribution 9.1 Joint and Several Liability
towards their direct and indirect purchasers as well as to their direct and indirect suppliers, they are lia - ble towards other victims only when it is impossible to obtain full compensation from other infringers, • The liability of SMEs is limited. Such entity shall be jointly and severally liable only towards its direct purchasers or indirect purchasers or direct suppliers or indirect suppliers if its share in the relevant market is lower than 5% throughout the entire duration of the infringement and its joint and several liability without the limitations resulting from this provision would constitute an irreversible threat to the economic viability of their business and would result in a total loss of the value of their enterprise. This rule does not apply when a SME played a leading role in the infringement or induced others to participate in it. The limitation of liability also does not apply if such entity was previously found to have violated the competition law. 9.2 Contribution Under general rules, if the damage was the result of an action or omission by several persons, the person who repaired the damage may demand from the oth - ers the return of the appropriate part, depending on the circumstances and particularly on the fault of a given person and the extent to which the given per - son contributed to the damage (Article 441, Section 2 of the Polish Civil Code). This regulation applies also under the Damage Act. However, the Damage Act regulates separately limi - tations on the contribution by certain third parties to the amount of damages already compensated by one of the perpetrators of the infringement. The Damage Act limits the right of the infringer who already com - pensated the damage to demand contributions from the leniency applicant exempted from penalty. From such a leniency applicant, compensation may not be demanded in an amount higher than the amount of damage caused by that entity to its direct purchasers or indirect purchasers or direct suppliers or indirect suppliers. (This limitation does not apply if the damage concerns the injured party who is not a direct pur - chaser or an indirect purchaser or a direct supplier or indirect supplier of any of the infringers who are jointly and severally liable) (Article 5 (3) of the Damage Act).)
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