i OVERVIEW OF RECENT PRIVATE ANTITRUST LITIGATION ACTIVITY
A major reform of the private antitrust enforcement rules took place in Poland in 2017, as Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (Damages Directive) was implemented into Polish law.
The Polish lawmakers decided to implement the Damages Directive in one comprehensive piece of legislation devoted specifically to antitrust litigation – the Act of 21 April 2017 on the private enforcement of competition law (Private Enforcement Act) – and amended the general civil law liability provisions concerning enforcement, as appropriate. Minor amendments were also introduced, among others, to the Act of 16 February 2007 on Competition and Consumer Protection (Competition Act) concerning the discovery of evidence. The new regime became effective on 27 June 2017.
The Private Enforcement Act systematised and introduced important changes to the Polish private antitrust enforcement regime, setting some new rules of evidence in the Polish civil court proceedings facilitating claims by parties harmed by competition law infringements. Notwithstanding, while these amendments came into force in mid-2017, we have not observed a visible increase in the amount of private antitrust litigation activity in Poland.
ii GENERAL INTRODUCTION TO THE LEGISLATIVE FRAMEWORK FOR PRIVATE ANTITRUST ENFORCEMENT
The key regulation enabling private antitrust enforcement in Poland is currently the Private Enforcement Act. Private antitrust enforcement is founded on the principle of the culpability of the infringer of the competition law.2 As such, there are three requirements for an infringer to be liable under the Act:
- culpability: that is, that a defendant's behaviour infringing the competition law is illegal, unless the defendant is not at fault;
- harm incurred by the claimant; and
- the causal link between the defendant's behaviour and that harm.
Whether an infringer is at fault for an infringement of the competition law is determined on the basis of two premises: whether such behaviour is illegal (objective test) and whether the defendant was at fault (subjective test). Under the Private Enforcement Act, an infringement of competition law, which is understood as an infringement of Article 101 or 102 of the Treaty on the Functioning of the European Union (TFEU) or their Polish equivalents (i.e., Articles 6 and 9 of the Competition Act, respectively), fulfills the illegality requirement.3
For liability to arise, a defendant must be liable for the infringement of the law, and the Private Enforcement Act introduces a statutory rebuttable presumption that the undertaking infringing the competition law is liable for that infringement.4 Consequently, it is the defendant who has to prove his or her non-liability. Further, Polish competition law provides for a statutory presumption that any infringement of the competition law causes harm,5 which includes both actual loss (damnum emergens) and lost revenue (lucrum cessans).6 To establish liability for an antitrust violation, there also must be a causal link7 between the infringement of the competition law and the harm incurred by the claimant. Under the applicable general provisions of Polish law, the infringer is therefore liable only for the ordinary consequences of its actions (objective test).
Cases concerning private antitrust litigation are heard before the district courts, regardless of the value of the claim.8
The limitation period in cases of private antitrust enforcement is five years from the date the claimant became aware of the loss resulting from the competition law infringement, or should have become aware of it if it had exercised due diligence. The limitation period cannot, however, be extended to longer than 10 years from the date of the occurrence of the infringement.9 The limitation period starts running only if the competition law infringement ceases to exist or is suspended if proceedings regarding the case are launched by the President of the Office of Competition and Consumer Protection (OCCP), the European Commission or any national competition authority within the EU.10 That suspension is automatically lifted and the limitation period continues to run one year after the proceedings before the relevant authority are concluded.11 Unlike the Damages Directive,12 the Private Enforcement Act does not provide for a suspension of the limitation period while parties attempt to resolve a dispute amicably.
The Private Enforcement Act provides that an infringement of competition is deemed to be established by a final infringement decision of the OCCP or a final judgment rendered by a court as a result of an appeal of a decision of the OCCP.13 The finding of an infringement in a legally valid decision of the OCCP or judgment should be regarded as proven for the purposes of actions for damages related to that infringement filed in Polish courts. The court is bound by an infringement decision insofar as it covers the nature of the infringement and its material, personal, temporary and territorial scope, as determined by the OCCP in the exercise of its jurisdiction. Moreover, the court is only bound by final infringement decisions of the OCCP or final judgments rendered by a court as a result of an appeal of a decision of the OCCP. Therefore, the final infringement decision means a decision that finds the competition law infringement and that is not a subject to ordinary appeal remedies.
Furthermore, under Polish law the OCCP can present the court with an opinion on the case in question,14 particularly in matters concerning competition and consumer protection, when it is justified by the public interest.15 The OCCP's opinion may relate to the factual circumstances of a court case or the legal assessment of those circumstances. The opinion cannot be considered as evidence in the case and is not binding on the court. Providing the court with an opinion does not make the OCCP a party or any other participant to the court proceedings.
The provisions of the Private Enforcement Act apply in their entirety only to competition law infringements that took place after 27 June 2017, that is after the Private Enforcement Act entered into force.16 However, procedural rules set out in the Private Enforcement Act apply to all civil proceedings concerning antitrust damages initiated after 27 June 2017, regardless of when the competition law infringement occurred, if it remains within the limitation period.17
As a general rule, the application of the Competition Act extends to all actions where the anticompetitive effect took place on the territory of Poland.18 Thus, the Competition Act applies to both Polish and foreign entities. Moreover, the Competition Act applies each time that an agreement or a concerted practice has had an impact on competition in Poland irrespective of whether the conduct occurred in Poland or overseas (both in EU Member States and in third countries). The choice of substantive law in the private enforcement antitrust proceedings should follow the rules set out under the Rome II Regulation.19 According to Article 6(3) of Rome II, as a general rule, Polish law applies to all non-contractual obligations arising out of a restriction of competition that had effects in Poland.
Any entity with legal capacity that has suffered loss, directly or indirectly (e.g., customers), from the competition law infringement can bring a claim against the infringer.
The Private Enforcement Act presumes that competition law infringements cause harm. Competition law is understood as Articles 101 or 102 TFEU or their Polish equivalents (i.e., Articles 6 and 9 of the Competition Act). Therefore, the scope of this statutory presumption applies to cartels as well as prohibited vertical agreements and instances of abuse of a dominant position. Consequently, the application of the Private Enforcement Act in Poland is wider than the Damages Directive, which mandatory application is limited to cartel infringements.
v THE PROCESS OF DISCOVERY
The general rule in Polish civil court proceedings is that the burden of proof relating to a fact shall rest on the person who attributes the legal effects to that fact,22 except in the case of rebuttable presumptions (e.g., in cases of contractual liability), where the reversed burden of proof is on the defendant.
There are no limitations on the form or kinds of evidence that can be presented, but the court can exclude evidence submitted only for the purposes of delaying the proceedings. The non-exhaustive list of forms of evidence in civil proceedings includes documents (official and private), witness statements, expert opinions, inspections and hearings.
The Private Enforcement Act introduces an entirely new, simplified procedure for obtaining evidence in antitrust civil litigation, including the claimant's right to file a request for disclosure of evidence.
Where the claimant has presented a request for the disclosure of evidence with a reasoned justification of the plausibility of its damages claim and undertook to use the obtained evidence solely for the purposes of pending antitrust proceedings, the court may order the defendant to produce the relevant documents in its possession and custody.23 Failure by the defendant to produce documents may result in the claimant's full reimbursement of the costs of the proceedings (regardless of the outcome of the case), or the court's discretion to draw adverse inferences, or both. The defendant is also entitled to file a request for evidence subject to the same requirements and limitations.
Under the Private Enforcement Act, the court may also order disclosure of evidence by a third party, including the competition authority. The competition authority is under an obligation to disclose such evidence only if obtaining the relevant information in any other way is practically impossible or excessively difficult.24 The provision does not, however, provide the court with discretion to order disclosure of leniency statements and settlement submissions made by the infringer. The Act exempts such documents from disclosure as privileged. Even if the settlement submission is withdrawn it must be kept confidential, at least until the antitrust proceedings before the relevant competition authority are concluded. The same rule applies to information prepared by the party in the antitrust proceedings if prepared specifically for such proceedings.
The decision of a court on disclosure of evidence can be appealed to the second instance court and legally binding decision ordering disclosure of evidence constitutes an enforcement order. Misuse of disclosed evidence will result in the court disregarding that evidence and a party requesting the disclosure of evidence in bad faith may be subjected by the court to a non-discretionary fine of up to 20,000 zlotys.
vi USE OF EXPERTS
There are no specific provisions governing the use of experts in private antitrust enforcement proceedings, and the general rules of the Civil Procedure Code25 apply accordingly.
In matters requiring specific expertise, the court may appoint experts (one or more, as it finds appropriate) from the official list of court expert witnesses, or request an expert report from a scientific or specialised institution.26 The assessment of expert evidence is left for the court and the only statutory requirement for an expert opinion is for it to have a justification.27 The court may appoint an expert witness at its own discretion or at a party's request, however in the latter case the decision ultimately rests with the court. In any case, expert witnesses must remain impartial.
Since Polish law does not recognise party-appointed expert witnesses in civil court proceedings, the evidentiary value of opinions prepared by such experts is limited – that is, that of a party position or a private document – and is subject to procedural rules applicable to any other evidence.28 Such opinion will not have the evidentiary value of an opinion issued by an expert witness appointed by the court.
After the reform of the Civil Procedure Code that became effective in November 2019, the courts may permit the use of the expert opinion prepared by the administrative body in a separate proceedings. This means that upon the party's motion in the private enforcement litigation the court may rely on the expert opinion ordered by the competition authority during the administrative proceedings concerning private competition law infringement.
Although the Private Enforcement Act introduces rebuttable legal presumptions specific to private antitrust enforcement, such as the presumption of harm, the use of experts remains key for proving other factors relevant to the claim, such as the amount of damage.
vii CLASS ACTIONS
In Poland, there is no specific class action procedure related to competition law infringements. However, the harmed parties may rely on the class action provisions in the Group Proceedings Act.29
Under the Group Proceedings Act, class action suits may be brought in cases where at least 10 persons pursue the same type of claims based on the same or similar factual background.30 The closed list of categories of cases permitted under the Group Proceedings Act includes, among other torts (e.g., competition law infringements), liability suits for non-performance or improper performance of contracts, unjust enrichment and consumer protection claims. Class action suits can also be brought by groups of entrepreneurs or groups of entrepreneurs together with other entities. In the proceedings, the group is represented by a sole representative who acts in his or her own name on behalf of the group and must be approved by all group members.31
In addition, the Private Enforcement Act introduces two instances where non-governmental organisations (NGOs) can bring actions on behalf of claimants, subject to their written consent. NGOs can represent entrepreneurs or consumers, respectively, as long as their statutory tasks include market protection against practices that violate competition law or consumer protection.32 Both instances require the claimant's written consent.
Although currently class actions in Poland are subject to lower court fees and allow for the court to award attorneys' contingency fees of up to 20 per cent, not many such suits for competition law infringements have been initiated so far. This may be partially due to group proceedings taking considerably longer than typical civil court cases and the court's discretion to order security for costs, if warranted.
viii CALCULATING DAMAGES
The Private Enforcement Act establishes a rebuttable presumption that any competition law infringement (domestic or EU) results in harm.33 Thus, to seek damages in private enforcement, in principle, the injured party will only have to prove the extent of the harm incurred.
The key element for each damages claim is the quantification of loss (both the actual loss and lost profits) resulting from the competition law infringement. The Private Enforcement Act does not provide a specific quantification method in this regard. Rather, it refers the court to the recommendations set out in the relevant Commission guidelines.34
However, those guidelines are in no way binding on the Polish court. In its damages calculation, the court must only follow the mandatory provisions of Polish civil law (i.e., award the appropriate monetary damages based on the court's assessment and consideration of all the circumstances of the case).35 Under the general provisions of Polish civil law, the damages awarded are designed to restore the claimant to the position in which it would have been had the breach (e.g., the competition law infringement) not been committed. Thus, the court cannot award damages exceeding the amount of loss actually incurred by the claimant, and punitive or exemplary damages are not available under Polish law. With the reform of the Civil Procedure Code that became effective in November 2019, the courts now have wider discretion to apply equity considerations when the circumstances of the case prove it impossible, excessively difficult or inexpedient to precisely prove the value of the claim. It remains to be seen how the courts will apply this wider discretion to private enforcement claims.
Notwithstanding, under the Private Enforcement Act, the court can request assistance in the calculation of damages from the OCCP or a competition authority from another Member State.36 None of these organs, however, are legally bound to assist; nor is the court bound by their recommendation.
In addition, the Private Enforcement Act establishes a mechanism for corrections of interest in cases where compensation is determined based on a price from a date different than the date on which the compensation was fixed. In such cases, the aggrieved party is entitled to claim additional statutory interest for the period from the date used for the determination of the price until the date on which the claim becomes due and payable.37
Finally, under the Private Enforcement Act the court is bound by orders and decisions of competition authorities confirming infringements of competition law regarding each specific case, which cannot be overruled in the compensation proceedings.
With regard to attorneys' fees, retainer costs can be reimbursed according to payment rates specified in separate regulations, but awarded costs cannot exceed these rates. Awarding a retainer contingency fee of up to 20 per cent is permitted in class actions.
ix PASS-ON DEFENCES
The Private Enforcement Act contains a statutory pass-on presumption, according to which any competition law infringement resulting in an overcharge for a direct purchaser is presumed to be passed on to the indirect purchaser who bought the products.38 However, the pass-on presumption can be claimed and used only by the indirect purchaser seeking compensation from the antitrust infringer.39 The presumption is rebuttable, and the infringer has the right to contest it. To benefit from this presumption the initial competition law infringement must be proven, for instance by a decision of a competition authority (i.e., the OCCP, the European Commission or a competition authority of the EU Member State) or by a court's judgment.
The pass-on presumption cannot be used by the infringer to defend him or herself from the compensation claims.40 The infringer, when raising such a defence charge, must always prove that the overcharge was passed on by the direct purchaser and therefore he or she should be awarded limited damages or no damages.
x FOLLOW-ON LITIGATION
A private enforcement claim can be brought in civil proceedings on a follow-on basis in respect of any type of practice that might be deemed anticompetitive under Polish or EU competition law. The Private Enforcement Act provides that an infringement of competition is deemed to be established by a final infringement decision of the OCCP or a final judgment rendered by a court as a result of an appeal of a decision of the OCCP.41 The Act does not provide any limitation on private actions or awards against parties who have been subject to public enforcement actions.
The Private Enforcement Act does not explicitly mention all the circumstances establishing the privilege, that is, the obligation not to disclose information during the course of private antitrust enforcement proceedings. Nevertheless, the provisions of other legislative acts regarding confidentiality of information apply.
Polish courts must respect the confidentiality of communications between an attorney admitted to the bar and his or her client.42 Consequently, the content of correspondence between a client and an attorney and the content of legal advice are privileged. Requests for disclosure of such evidence during a private antitrust litigation should be rejected by the court. The same principle applies to other kinds of information considered as confidential under Polish law, such as classified information, medical secrets, banking secrets or information falling within the scope of press privilege.
The Private Enforcement Act provides that the court shall refuse requests for the disclosure of evidence when it does not meet the proportionality requirement.43 When deciding whether the disclosure would be proportional, the court must consider the extent to which the evidence relates to information constituting a business secret or other secret subject to legal protection under separate regulations, and the means available to protect such information.44 At a party's request, the court can allow such evidence and at the same time restrict access to it during the proceedings.45
In addition, the Private Enforcement Act provides that in private antitrust enforcement proceedings, the Polish courts cannot order a party or a third party to disclose leniency statements and settlement submissions, including settlement proposals.46
xii SETTLEMENT PROCEDURES
Settlement procedures applicable to private antitrust enforcement are governed by the general rules of Polish civil procedure and parties to a damage claim in relation to a competition law infringement can settle the case. In cases where an amicable settlement is admissible, the court should strive to reach an amicable settlement at any stage of the proceedings, in particular by encouraging the parties to use mediation. If a court settlement is reached, it must be signed by the parties and reflected in the court record.
Additionally, the Private Enforcement Act states that an injured party that has settled with one of the co-infringers can only claim from the other co-infringers an amount of damages reduced by the amount that the settling co-infringer would have been liable for if not for the settlement.47 Under the general Polish law provisions, the amount of the antitrust settlement does not have to be revealed. Rather than being based on the actual amount settled, the reduction is based on the co-infringer's share of damages taking into account all circumstances of the case, including the fault of the settling co-infringer and the extent of the co-infringer's contribution to the damage that occurred.48
The indirect consequence of the rule set out in Article 6 of the Private Enforcement Act is also that the settling co-infringer is no longer jointly liable with the remaining co-infringers and cannot be subject to any recourse claims from them. Therefore, it is in the jointly liable infringer's interest to have the settlement reflected in the claimant's statement of claim or put on the record during the court proceedings.
Finally, the settling co-infringer is not released from joint and several liability for the entire damage that has occurred in cases where the claimant cannot recover the damages from the other non-settling co-infringers. The inability to recover from other co-infringers must meet an objective test, that is, that objective circumstances exist that foreclose the claimant's ability to effectively and fully recover damages in their entirety (e.g., due to bankruptcy). In such cases, the claimant is entitled to recover the damages also from the infringer from which it previously obtained a settlement and such a co-infringer retains the recourse rights against the others.
Under Polish law, proprietary claims are admissible in arbitration and so parties can agree to submit a dispute involving infringements of competition law to the arbitration courts, provided that such disputes arise from contractual relations. The most recognised arbitral institutions in Poland are the Court of Arbitration at the Polish Chamber of Commerce in Warsaw and the Court of Arbitration at the Polish Confederation Lewiatan.
In the past few years, very few cases concerning breaches of competition law (e.g., in conjunction with intellectual property law) have been heard by arbitral tribunals. Due to the confidential nature of the proceedings, no detailed information about those cases is publicly available.
xiv INDEMNIFICATION AND CONTRIBUTION
In Poland, undertakings that have infringed the competition law through joint behaviour are jointly and severally liable for the harm caused by that infringement and the claimant is thus entitled to seek full compensation from any of the co-infringers.
The Private Enforcement Act introduces two exceptions to this rule: small or medium-sized enterprises (SMEs) and infringers granted immunity under a leniency programme.
An SME will only be liable to its own direct and indirect purchasers and providers if:
- its market share in the relevant market was below 5 per cent at any time during the infringement;
- the application of the normal rules of joint and several liability would irretrievably jeopardise its liquidity or cause loss of value of its assets;
- the SME has not led the infringement;
- the SME has not coerced other undertakings to participate therein; and
- the SME has not previously been found to have infringed the competition law.
An undertaking that has been granted immunity under a leniency programme is jointly and severally liable only to its direct or indirect purchasers or providers, or if full compensation cannot be obtained from the other co-infringers.
Where an injured party contributed to the occurrence or increased the extent of the damage, the court has the right, but not the duty, to reduce the amount of damages.49 The court may award full damages even in the event of contributory negligence.
xv FUTURE DEVELOPMENTS AND OUTLOOK
The Private Enforcement Act introduces a number of solutions that should facilitate seeking compensation from competition law infringers through private enforcement. Yet despite the Act being in force since mid-2017, such cases remain relatively rare in Poland.
Many suggest that this is due to the limited awareness of potential claimants of the availability of private enforcement actions, the relatively expensive and lengthy litigation, and the lack of the required expertise in Polish civil courts. Private enforcement enthusiasts believe that new discovery rules, the availability of class actions and the simplified procedures introduced under the Private Enforcement Act will increase the popularity of such cases in the coming years.
Certainly, with those procedures applicable to all kinds of competition law infringements (cartels, but also vertical agreements and abuse of dominant position) and competition authority's decisions being binding on the Polish courts, it may be the OCCP's active role in the pursuit of competition law infringements that determine the future caseload of antitrust disputes.
It will also be interesting to see whether injured parties will look in a more favourable manner at arbitration as a forum to seek compensation for competition law infringement. The more lenient procedural rules governing the arbitration proceedings and the arbitrator's greater discretion in awarding damages and representation fees may compensate the likely higher cost of such a solution.
It remains to be seen how the November 2019 reform of the Civil Procedure Code will impact private enforcement proceedings. Although the reform did not have any direct impact on private enforcement rules and the Private Enforcement Act itself, litigation between undertakings is now governed by stricter procedural rules that could negatively influence antitrust litigation in Poland.
1 Natalia Mikołajczyk and Wojciech Podlasin are senior associates at Linklaters C Wiśniewski i Wspólnicy.
2 Article 3 of the Private Enforcement Act.
3 Article 2 Point 1 of the Private Enforcement Act.
4 Article 3 of the Private Enforcement Act.
5 Article 7 of the Private Enforcement Act.
6 Article 361 Paragraph 2 of the Civil Code.
7 Article 361 Paragraph 1 of the Civil Code.
8 Article 11 of the Private Enforcement Act.
9 Article 9 Paragraph 1 of the Private Enforcement Act.
10 Article 9 Paragraph 2 of the Private Enforcement Act.
11 Article 9 Paragraph 3 of the Private Enforcement Act.
12 Article 18(1) of the Damages Directive.
13 Article 30 of the Private Enforcement Act.
14 Article 31d of the Competition Act.
15 Article 31d of the Competition Act.
16 Article 36 Paragraph 1 of the Private Enforcement Act.
17 Article 36 Paragraph 2 of the Private Enforcement Act.
18 Article 1 Paragraph 2 of the Competition Act.
19 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II).
20 Article 4 of Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (Brussels I bis).
21 Article 7(2) of the Brussels I bis.
22 Article 6 of the Civil Code.
23 Article 17 of the Private Enforcement Act.
24 Article 17 Paragraph 2 of the Private Enforcement Act.
25 Act of 17 November 1964 Code of Civil Procedure.
26 Article 278 Paragraph 1 of the Civil Procedure Code.
27 Article 285 of the Civil Procedure Code.
28 Article 2431 – 257 of the Civil Procedure Code.
29 The Act of 19 January 2009 on Pursuing Claims in Group Proceedings.
30 Article 1 Paragraph 1 of the Group Proceedings Act.
31 Article 4 Paragraph 2 of the Group Proceedings Act.
32 Article 14 of the Private Enforcement Act.
33 Article 7 of the Private Enforcement Act.
34 Article 31 Paragraph 2 referencing the Communication from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union (2013/C 167/08).
35 See Article 361 Paragraphs 1 and 2 of the Civil Code; Article 362 Paragraphs 1 and 2 of the Civil Code; and Article 322 of the Civil Procedure Code.
36 Article 31 Paragraph 2 of the Private Enforcement Act.
37 Article 8 of the Private Enforcement Act.
38 Article 4 Paragraph 1 of the Private Enforcement Act.
39 Article 4 Paragraph 2 of the Private Enforcement Act.
40 Article 4 Paragraph 2 of the Private Enforcement Act.
41 Article 30 of the Private Enforcement Act.
42 Article 261 Paragraph 2 of the Civil Procedure Code.
43 Article 21 Paragraph 2 of the Private Enforcement Act.
44 Article 21 Paragraph 2 Point 4 of the Private Enforcement Act.
45 Article 23 of the Private Enforcement Act.
46 Article 18 Paragraph 1 of the Private Enforcement Act.
47 Article 6 of the Private Enforcement Act.
48 Article 441 Paragraph 1 of the Civil Procedure Code.
49 Article 362 of the Civil Code.