POLAND Law and Practice Contributed by: Dorothy Hansberry-Bieguńska, Sabina Famirska, Grzegorz Materna and Dorota Podsiedzik-Malec, Hansberry Tomkiel
13. Looking Forward 13.1 Legislative Trends and Other Developments
Thus the existence of a presumption of harm in claims for damages concerning abuse of dominance, for instance, is a factor that signals the uniqueness and attractiveness of the Polish legal system to potential plaintiffs in claims for damages based upon Article 102 of the TFEU and claims for damages based on Article 9 of the Polish Competition Act. The OCCP has issued more decisions finding viola - tions of Article 101 than of Article 102 of the TFEU (or of their Polish law equivalents). It must be stated clearly that the total number of OCCP decisions on abuses of dominance is very low. According to offi - cial data, which can be found in the OCCP’s annual reports, only two such decisions were issued in 2024 (interestingly, neither found a violation). There were no decisions on abuse of dominance in 2022 or 2023. Owing to the above-mentioned circumstances, it makes sense that a plaintiff will most likely have to file a standalone action if it wishes to bring a claim for damages based upon an abuse of dominance. Thanks to the Damage Act’s broad presumption of harm, the chances of succeeding with such a claim for damages will be enhanced.
The Damage Act plays crucial role in the legislative framework for antitrust litigation in Poland and remains a rare example of solid and unchanging legal acts in Poland. It has not been amended since its entry into force on 27 June 2017, whereas the Polish Competi - tion Act has been amended 16 times. In the case of Polish private antitrust litigation, it is difficult to clear - ly assess whether the constancy of the rules helps. There are no official statistics on the number of court cases concerning private claims for infringement of competition law in Poland. In that regard, the authors are not aware of any comprehensive study giving sta - tistics and outcomes of private claims for damages within the EU since the Compensation Directive. How - ever, the number of judgments issued in such cases is increasing, which supports the growing confidence in the development of antitrust litigation in Poland. Compared to the Compensation Directive, Polish rules on private damages have some features that could be seen as an advantage for those who claim for dam - ages. The Compensation Directive’s presumption of harm is limited to cartel infringements. Article 17 (2) of the Compensation Directive reads: “It shall be presumed that cartel infringements cause harm. The infringer shall have the right to rebut that presump - tion.” Notably, as mentioned earlier, the Damage Act’s scope of the presumption of harm is wider than that of the Compensation Directive because it applies not only to infringements caused by cartels but to every infringement of competition law (including prohibited vertical agreements and abuses of dominance).
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