Poland: Competition Litigation

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This country-specific Q&A provides an overview to competition litigation laws and regulations that may occur in Poland.

This Q&A is part of the global guide to Competition Litigation. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/competition-litigation/

  1. What types of conduct and causes of action can be relied upon as the basis of a competition damages claim?

    Under the Act of 21 April 2017 on claims for compensation for damage caused by violation of competition law (Polish Private Enforcement Act, Act), the claimant may seek damages for defendant’s behaviour that constituted an infringement of competition law understood as a violation of Article 101 or 102 of the Treaty on the Functioning of the European Union (TFEU), or their Polish equivalents - respectively - Articles 6 and 9 of the Act of 16 February 2007 on Competition and Consumer Protection (Polish Competition Act). This means that the Polish Private Enforcement Act permits to seek compensation not only for damage incurred as a result of cartels, but also vertical restraints and instances of an abuse of dominance.

  2. What is required (e.g. in terms of procedural formalities and standard of pleading) in order to commence a competition damages claim?

    In order to commence a competition damages claim based on the Polish Private Enforcement Act one must file a written statement of claim that meets the general standard of a pleading and requirements set out in the Act of 17 November 1964 Code of Civil Procedure (Polish Civil Procedure Code).

    In particular, the applicable court fee must be fully paid for the court to take any action. In addition, there are number of formalities regarding the pleading itself. A statement of claim has to i.a. (i) specify the relief sought, (ii) describe the facts in support of the claim and, where necessary, also the grounds for the court jurisdiction and (iii) provide evidence in support of the alleged facts. It should also include necessary motions aimed at the preparation of a trial, for instance motions to summon witnesses and expert witnesses named by the claimant, to carry out an inspection, to order the defendant to bring to the trial document or a thing to be inspected, to produce evidence which is in possession of courts, offices or third parties for purposes of trial, or a motion for disclosure, which is an instrument specific for competition damages claims only.

    Apart from the above, the statement of claim must include information whether the parties attempted mediation or used other alternative dispute resolution methods, or if not, the reasons for failing to do so.

    Importantly, the final decision of the Polish competition authority, i.e. the President of the Office of Competition and Consumer Protection (OCCP), or other competition authority of the EU member state or the European Commission, is not recognised as a prerequisite to commence a competition damages case.

  3. What remedies are available to claimants in competition damages claims?

    The key remedy available to claimants in competition damages claims is a claim for payment of the compensation for damage (including actual loss and lost profits) incurred as a result of an infringement of the competition law together with applicable interests. Such claims for compensation could be pursued either as individual actions or a class action.

    In addition, a remedy aiming at establishing a legal situation (i.e. sole declaring of a liability of the defendant for particular action or actions) is available in class actions. Unlike in case of individual claims aiming at establishing of a legal relationship, the claimant in a class action does not have to prove its legal interest in such declaration. In practice individual claims aiming at declaring of a liability of the defendant for a competition law infringement could possibly be dismissed due to a lack of legal interest, understood as having a possibility to pursue further-reaching claim, i.e. a claim for payment.

    Also, motions for injunction (security of claim) are available to claimants in competition damage claims. The court may grant security prior to the initiation or in the course of proceedings. In order to obtain a security of damage claims, the claimant has to substantiate its claims and a legal interest in obtaining such security. Such a legal interest in having the security granted exists where the absence of security would prevent or significantly hinder the enforcement of a judgment in the case or would otherwise prevent or significantly hinder the achievement of the objective of the proceedings.

    When granting a security before proceedings are initiated, the court would set a time limit of maximum 2 (two) weeks for statement of claim pleading to be filed. If the obligee does not pursue the claim within that limit or pursues a claim other than that which was secured, the security would be cancelled. Apart from that, in case the obligee fails to file the statement of claim within the prescribed time limit or if the action is dismissed the obligor may claim from the obligee redress of the damage caused by the enforcement of the security.

  4. What is the measure of damages? To what extent is joint and several liability recognised in competition damages claims? Are there any exceptions (e.g. for leniency applicants)?

    According to general rules of civil compensatory liability in Polish law, the redress of damage may involve both losses which the injured party has suffered, as well as lost profits, i.e. profits which could have been obtained, if no damage was inflicted.

    Polish civil law recognises the rule of joint and several liability for competition law infringements, classified under the Polish civil law as torts. According to the general rule, if several persons are responsible for damage caused by a tort, all infringers are jointly and severally liable for the damage caused by that infringement. This means that the claimant may seek full compensation from all co-infringers or either of them. The person who has redressed the damage may demand from the infringers the return of an appropriate part, as the case may be.

    Some limitations to the general rules apply to small and medium-sized enterprises (SMEs) as well as to leniency recipients. An SME will only be liable to its own direct and indirect purchasers and providers provided that its market share in the relevant market was below five per cent at any time during the infringement, while the application of the normal rules of joint and several liability would irretrievably jeopardise its liquidity or cause loss of value of its assets. At the same time the SME could not have a leading role in the infringement nor coerced other undertakings to participate in the infringement as well as infringed competition law for the first time. In turn, leniency recipients are 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.

  5. What are the relevant limitation periods for competition damages claims? How can they be suspended or interrupted?

    The limitation period for competition damages claims is five years from the date the claimant became aware of the damage resulting from the competition law infringement, or should have become aware of it if acted diligently. This period in any case cannot last longer than ten years from the infringement. The limitation period commences only if the defendant ceased to infringe competition law.

    The limitation period is suspended during the public enforcement proceedings carried out by the OCCP, the European Commission or any national competition authority within the EU. After one year from the final and binding judgments stating an infringement of competition law, the suspension of the proceedings expires and the limitation period continues to run. This suspension does not apply to amicable dispute resolution arrangements.

    According to the general rule in the Polish civil law the course of limitation may also be interrupted by any of the following: (i) any act before a court of law or other authority appointed to try cases or to enforce claims taken up directly to pursue, establish, satisfy or secure a claim; (ii) the acknowledgement of a claim by a person against whom the claim may be pursued; or (iii) initiating mediation.

  6. Which local courts and/or tribunals deal with competition damages claims?

    In Poland there are two types of common courts of first instance which can resolve civil matters: district and regional courts. District courts (Polish: sąd rejonowy) decide on less complex and having value of the claim not exceeding certain threshold, whereas the regional courts (Polish: sąd okręgowy) deal with all the other disputes.

    Claims for infringement of competition law fall within the jurisdiction of regional courts, regardless of the value of the claim.

  7. How does the court determine whether it has jurisdiction over a competition damages claim?

    Polish courts could have domestic jurisdiction over a competition damages claim if the defendant is domiciled in Poland or domiciled outside of Poland if the infringement took place or had its effects in Poland.

    Since there is no specific court assigned to decide on competition damages claims in Poland, the general rules on territorial jurisdiction apply. Hence, the claimant may file the statement of claim either before the court which has jurisdiction over the territory where the defendant has its place of residence or where it has its registered office, or where the event giving rise to the claim has occurred.

    If proceedings for competition damages claims caused by the same infringement of competition law are pending before several courts, each of those courts may request for other matters to be referred, for the purpose of their joint consideration and resolution, if justified on the grounds of expediency or to avoid conflicting judgments. An action may also be brought before a court before which proceedings for compensation for damage caused by the same person or entity are already pending.

  8. How does the court determine what law will apply to the competition damages claim? What is the applicable standard of proof?

    The general rules on conflict of laws apply to competition damages claims. Pursuant to the Rome II Regulation the law applicable to a non-contractual obligation arising out of an act restricting competition shall be the law of the country where competitive relations are, or are likely to be, affected. Thus, the Polish Competition Act may apply to the infringements that had impact on competition in Poland, regardless of place where the infringement took place or the registered office of the undertaking that committed the infringement.

    The rules on the competition damages claims set out in the Polish Private Enforcement Act apply to infringements that occurred after 27 June 2017. There is however an exception concerning some of the procedural provisions of this act as those apply to all competition damages cases that were commenced after 27 June 2017.

    With regard to the standard of proof, the general rule of the Polish civil law is that the burden of proof relating to a fact shall rest on the entity who attributes the legal effects to that fact, except in the case of rebuttable presumptions, where the reversed burden of proof lies with the defendant.

    Competition damages claims in Poland are founded on the principle of the culpability of the infringer of the competition law. For an infringer to be found liable his/her behaviour must be illegal, i.e. infringing competition law. The illegal behaviour is understood objectively as conduct infringing Article 101 and 102 TFEU and/or Article 6 and 9 of the Polish Competition Act. In order to be held liable, a defendant must be at fault. The infringer’s wrongdoing must result in the claimant’s damage. Finally, there must be adequate causal link between the defendant’s wrongdoing and the damage.

    The Polish Private Enforcement Act provides for a number of procedural instruments that are aimed to facilitate pursuing competition damage claims. First, there is a statutory (rebuttable) presumption foreseen by the Polish Private Enforcement Act that the undertaking infringing competition law is at fault and it is for the defendant to rebut this presumption. Also, there are several novelties introduced by the Polish Private Enforcement Act concerning the concept of damage and the associated burden of proof. There is a statutory presumption that a competition law infringement results in damage. It is also presumed that excessive burden has been passed on to the indirect purchaser, if an infringement of competition law has resulted in an excessive burden on the direct purchaser, and the indirect purchaser has acquired the products affected by the infringement. With regard to the competition law infringements that occurred before 27 June 2017, but where a competition damages case is instigated after 27 June 2017, the general tort liability rules apply, with some modifications as per procedural provisions of the Polish Private Enforcement Act, mainly the rules for disclosure which will be applicable. Therefore, in such cases, other aforementioned procedural facilitations will not apply. As a result, the burden of proof rests upon the claimant who must prove that the defendant is at fault, the infringer’s wrongdoing resulted in the claimant’s damage and that there is an adequate causal link between the damage and the defendant’s wrongdoing, based on general rules of the tort liability under the Polish civil law.

  9. To what extent are local courts bound by the infringement decisions of (domestic or foreign) competition authorities?

    Under the Polish Private Enforcement Act 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. The court is bound by such a decision with regard to the nature of the infringement and its material, personal, temporary and territorial scope.

    Moreover, according to the provisions of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, Polish courts cannot issue decisions inconsistent with the decision issued by the Commission. This applies to the cases when the European Commission recognises that some specific agreement, decision or practice are prohibited pursuant to Article 101 or 102 TFEU. Therefore, the decision of the European Commission is binding for the Polish courts.

  10. To what extent can a private damages action proceed while related public enforcement action is pending? Is there a procedure permitting enforcers to stay a private action while the public enforcement action is pending?

    Private damages action can be proceeded independently from a public enforcement action. There are no specific rule permitting enforcers to stay a private action while the public enforcement action is pending and the general rules of the Polish civil procedure apply. This means that the court, may optionally stay the proceedings on its own initiative, e.g. if it considers that the determination of the case depends on the outcome of other civil proceedings pending or a prior decision issued by a public administration authority. The decision ultimately always lies within the discretion of the court.

  11. What, if any, mechanisms are available to aggregate competition damages claims (e.g. class actions, assignment/claims vehicles, or consolidation)? What, if any, threshold criteria have to be met?

    Under the Polish law competition damages claims qualify for general class action proceedings. Under those rules a class action may be brought in cases where at least 10 persons pursue the same type of claims based on the same or alike factual background. Class actions can be brought by both natural persons and legal 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.

    Apart from that, several persons may appear in one case as claimants if the subject matter of the dispute involves claims of one type, arising out of the same question of law or fact and if additionally, the court’s jurisdiction is justified for such claims (formal joinder of parties).

    Moreover, contractual assignment of competition damage claims is also possible under the general rules of Polish civil law. In such case a party (also a third party) may aggregate claims of various entities in one proceeding and pursue them as their own in the proceedings.

  12. Are there any defences (e.g. pass on) which are unique to competition damages cases? Which party bears the burden of proof?

    A defendant has right to use pass on defence and claim that any damage inflicted by the claimant was in fact recouped by the claimant in the form of overcharge borne by their customers. At the same time, the Polish Private Enforcement Act provides for statutory pass on presumption based on which any competition law infringement resulting in an overcharge for a direct purchaser from the infringer of competition law is presumed to be passed on to the indirect purchaser who bought the products from the direct purchaser. However, this rebuttable presumption cannot be relied on by the defendants. The presumption is rebuttable and subject to prior proof of competition law infringement. As a proof the party may present 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.

    Specific defences that limit the liability of a defendant apply to SMEs and leniency recipients.

    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, except in the case of rebuttable presumptions (e.g., in cases of contractual liability, fault is presumed), where the reversed burden of proof is on the defendant.

  13. Is expert evidence permitted in competition litigation, and, if so, how is it used? Is the expert appointed by the court or the parties and what duties do they owe?

    There are no specific provisions governing the use of experts in competition damages cases, thus the general rules of the Polish civil procedure apply.
    In matters requiring special expertise, the court may, having considered the motions of the parties as to the number and selection of experts, appoint experts from the official list of court expert witnesses, or request an expert report from a scientific or specialised institution. The ultimate assessment of such evidence remains entirely within the court’s discretion. The court may appoint an expert witness ex officio or at a party’s request. In any case, expert witnesses are bound by impartiality obligation.

    Under Polish civil procedure there are no party-appointed expert witnesses in civil court proceedings yet. Any document produced by such “party’s” experts are not recognised as an expert opinion but as a party’s statement. Nevertheless, in practice often parties to the dispute submit private experts’ opinions to support their claims and arguments.

  14. Describe the trial process. Who is the decision-maker at trial? How is evidence dealt with? Is it written or oral, and what are the rules on cross-examination?

    The general rule of the proceedings before Polish courts is that they are carried out mainly in writing. Certain requirements apply as the timing of presenting the facts of the case and evidence to substantiate it, as well as with regard to party’s submissions. During the hearings the parties may present their arguments orally.

    It is the parties’ capacity and obligation to present the facts and evidence relevant to support one’s claim. Rarely would the court admit evidence acting ex officio, although it is permitted by the Polish procedural rules. It is the court who watches over the course of the proceedings and decides whether to allow certain evidence presented by the parties. In particular the court can refuse to allow certain evidence, if it finds that evidence requested or presented is not relevant to the case or is submitted only for the purposes of delaying proceedings.

    As for the form or kinds of evidence that can be presented, a non-exhaustive list of forms of evidence admissible in Polish civil proceedings includes i.a. documents (official and private), witness statements (oral), expert opinions (written and oral), inspections and party’s testimony. As for the witnesses, at this point, there is no written witness statements in Polish procedure. A party adducing evidence by witness testimony should specify the facts to be established and identify witnesses to be summoned to testify in court. A witness testifies orally by first answering questions put to him or her by the presiding judge and then, the parties are allowed to conduct their examination, first direct and then cross examination.

  15. How long does it typically take from commencing proceedings to get to trial? Is there an appeal process? How many levels of appeal are possible?

    Reliable time predictions in regard to the private enforcement cases are difficult to make due to the limited caseload of competition damages cases in Poland.

    In standard civil cases, the time between commencing of the proceedings and getting to a first court hearing would depend on the workload of particular court having jurisdiction, which significantly vary across Poland. From our recent practice, the average time between filing the statement of claim and getting to trial before the regional court in Warsaw acting as a court of first instance has been approximately one year. The overall time of the proceedings in the first instance would depend largely on the scope of evidence material, number of hearings and whether the court appoints a court expert and it could take between 2 and 4 years, on average.

    As the proceedings before Polish courts are two-instance proceedings, there is an ordinary appeal from the court of 1st instance to the appeal court, acting as a court of 2nd instance. The 2nd instance proceedings could take between 1 and 2 years on average. An award of the court of appeal is final and enforceable.

    On limited grounds a final award rendered by the court of 2nd instance may be appealed to the Supreme Court. However, the Supreme Court would only allow an appeal if a material legal question is involved, or there is a need to interpret legal provisions which cause serious doubt or discrepancies in case law, or the proceedings were invalid, or a cassation appeal is evidently justified.

  16. Do leniency recipients receive any benefit in the damages litigation context?

    The leniency recipients are only liable for damage incurred by its direct or indirect suppliers and clients. The liability toward third parties is limited to situations where the entire damage incurred by the claimant cannot be recovered from the other co-infringers.

  17. How does the court approach the assessment of loss in competition damages cases? Are “umbrella effects” recognised? Is any particular economic methodology favoured by the court? How is interest calculated?

    In calculating competition damages the court must follow the mandatory rules of Polish civil law, under which damages awarded are designed to recreate the claimant’s position in which it would have been had the breach (e.g., the competition law infringement) not been committed. The court does not have right to award damages exceeding the amount of actual loss, neither to award more, than claimed.

    There are no special rules concerning quantification methods in competition damages cases prescribed by the provisions of the Polish Private Enforcement Act nor the Polish civil law, however it indicates, that the court may refer here to the Commission guidelines 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 or, guidelines of the European Commission on how to estimate the share of the overcharge which was passed on to the indirect purchaser, referred to in Article 16 of the 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. Also, at the request of the court, the OCCP or the competition authority of another Member State of the European Union may assist the court in determining the amount of damage, if the evidence and information gathered by the court allow it.

    However none of these are binding the court. If the court decides that it is impossible or extremely difficult to prove the precise amount of damage, it may award an adequate amount calculated upon consideration of all the facts of the case.

    Where compensation was made on the basis of a price from a date other than the date on which the compensation was determined, the claimant can seek for compensatory interest from the date on which the prices were the basis for determining compensation until the date on which the claim becomes due and payable.

    The umbrella effect is recognised and indirect purchasers can seek competition damages from the infringers.

  18. Can a defendant seek contribution or indemnity from other defendants? On what basis is liability allocated between defendants?

    If more than one person is liable for a competition law infringement they are jointly and severally liable for the damage caused by joint infringement. The claimant can claim compensation in full from any of the co-infringers.

    However, if the damage resulted from an act by several persons, a person who repaired it may then seek from the other persons responsible an indemnity in an appropriate part, depending on the circumstances of the case, in particular on the fault of the person concerned and the extent to which he or she contributed to the damage.

  19. In what circumstances, if any, can a competition damages claim be disposed of (in whole or in part) without a full trial?

    As a rule, as long as a competition damage claim is admissible and all the procedural requirements set out in the Polish procedure are met, the court should hear such case on the merits and, with some exceptions, is not allowed to dismissed the case without a full trial. One of the exceptions is a default judgment that could be issued if the defendant fails to appear at trial or he or she appear but takes no active part in the trial. In theory the Polish court could also hear a case in camera if the it considers, after the parties have filed pleadings and documents, having regard to all arguments and evidence, that a trial is not necessary. However such resolution seems highly unlikely in regard to competition damage claims, which would usually entail very complex evidentiary proceedings.

    Apart from the above, in certain situations the Polish court would reject or return a statement of claim. For instance, the court would reject a statement of claim, without going into trial, if an action is inadmissible or there is a lack of jurisdiction of the court over the claim. Also, the court would return the statement of claim if the claimant, fails to pay the applicable court fee in time or fails to comply with the formal requirements of the pleading.

  20. What, if any, mechanism is available for the collective settlement of competition damages claims? Can such settlements include parties outside of the jurisdiction?

    There is no specific mechanism provided for collective settlement of competition damages claims. If a settlement is concluded outside of court proceedings it could include parties from any jurisdiction.

    The injured party may choose to settle with one of the co-infringers who are jointly liable for the damage. In such case, the injured party may demand compensation from the other co-infringes in the amount reduced by the part corresponding to the amount that the settling co-infringer would have been liable for if it was not for the settlement. Unless the settlement agreement states otherwise, 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’. In such cases, the claimant is entitled to recover the damages also from the infringer with whom the settlement was signed, and such a co-infringer retains the recourse rights against the others.

    According to a general class action regulations in order to settle a class action before court more than half of the members of the group that were party to the proceedings must agree to a settlement. Where admissible, the court shall procure reaching an amicable settlement by the parties, for instance in form of a mediation. Any court settlement must be signed by the parties and reflected in the minutes of the hearing. Such settlement would include all members of the group.

  21. What procedures, if any, are available to protect confidential or proprietary information disclosed during the court process? What are the rules for disclosure of documents (including documents from the competition authority file or from other third parties)? Are there any exceptions (e.g. on grounds of privilege or confidentiality, or in respect of leniency or settlement materials)?

    The Polish Private Enforcement Act introduces new procedures for obtaining evidence in competition damages cases, which include the claimant’s right to request for disclosure of evidence.

    The court may order the defendant to produce the relevant documents in its possession and custody but only if the claimant presents substantiated request for the disclosure of evidence and undertake to make use of this evidence solely for the purposes of pending competition damages case. 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.

    The court may also order disclosure of information by a third party, including the competition authority. The competition authority is under an obligation to disclose such information only if obtaining it from the defendant or a third party is impossible or excessively difficult.

    Leniency statements and settlement submissions made by the infringer are exempt from disclosure as privileged. At the same time, if information was prepared specifically for the purpose of the proceedings conducted by the competition authority (being the OCCP or other competition authority of the EU member state as well as the European Commission) or prepared by such competition authority, it cannot be disclosed until the proceedings before the relevant competition authority are concluded. The same rule applies to withdrawn settlement proposals.

    The motion for disclosure of the evidence is dismissed if the evidence reveals information constituting a business secret or other secret subject to legal protection under separate provisions, in particular relating to third parties, and available means to protect such information. It is in the court’s hand to decide whether the evidence reveals the business secret or not. However, the court at the request of a party or a third party obliged to disclose evidence or ex officio, may restrict the other parties' right to inspect this proof or lay down detailed rules for reading and using this proof in particular to limit or exclude its copying or recording in a different way.

  22. Can litigation costs (e.g. legal, expert and court fees) be recovered from the other party? If so, how are costs calculated, and are there any circumstances in which costs recovery can be limited?

    According to the general rule, under Polish law the costs of the proceedings, including the court fee and legal fees, are borne by the losing party.

    A court fee amounts to 5% of the damage claim not less than PLN 30 (approximately 7 EUR) and not more than PLN 100,000 (approximately 22,728 EUR) and is paid by claimant at the stage of filing a statement of claim. The same costs claimant is obliged to pay in the case of the appeal (if any) and a cassation appeal. Class action proceedings are cheaper as the court amounts to 2% instead of 5% of the damage claim.

    The amount of party’s legal representation fees that could be recovered is limited by regulation of the Ministry of Justice and depends on the value in dispute. For example, for claims up to PLN 200,000 (approximately 45,456 EUR) the legal fees would amount to PLN 5,400 (approximately 1,228 EUR); for claims up to PLN 2,000.000 (approximately 454,545 EUR) the legal fees would amount to PLN 10,800 (2,455 EUR). Only if there is a significant degree of complexity, extensive evidentiary proceedings, or otherwise an increased workload of lawyers, the court may increase the minimum legal fees by (up to 6 times in the most complex cases).

  23. Are third parties permitted to fund competition litigation? If so, are there any restrictions on this, and can third party funders be made liable for the other party’s costs? Are lawyers permitted to act on a contingency or conditional fee basis?

    Third party funding is not prohibited by the Polish civil procedure but there is no specific regulations in this regard. Polish court can only award costs to a party to the proceedings and could not make third party funders liable for the other party’s cost, but there are no restrictions to regulate such liability in a separate contract between a party and the funder. A contingency or conditional fee are permitted, however, cannot constitute a sole remuneration formula of a registered (bar admitted) lawyer.

  24. What, in your opinion, are the main obstacles to litigating competition damages claims?

    Due to the fact that competition damages claims still remain seldom in the Polish practice and there is a paucity of case law to refer to, one may support themselves with the general views and opinions of commentators and practitioners of both competition law and civil court litigation. One of the main obstacles to litigating damages claims would be lack of specialized economic experts witnesses able to calculate damage arising out of competition law infringements. The other aspects that may be considered as major obstacles to litigating competition damages cases in Poland are the relative novelty of the substance matter to the civil judges as well as the limited awareness of potential claimants of the availability of private enforcement actions. Also, no specialised courts were created to hear competition damages claims, whereas the existence of such a court would most likely induce the consistency of the case law.

  25. What, in your opinion, are likely to be the most significant developments affecting competition litigation in the next five years?

    The Polish Private Enforcement Act has introduced a number of solutions that should facilitate seeking compensation from competition law infringers through private enforcement. New discovery rules, the presumptions and reversed burden of proof together with the availability of class actions and other simplified procedures introduced under the Polish Private Enforcement Act may increase the popularity of competition damages cases. Importantly, the Act introduces new possibilities to pursue redress for indirect damage, which makes room for new claims, previously not available under the general rules.

    As the new regulations apply to a broad range of competition law infringements and the OCCP’s activities that will largely determine the future caseload.

    Lastly, it should be mentioned that significant changes to the Polish civil procedure are on the horizon which may significantly affect competition damages litigation in the close future. The final version of draft is not yet passed but it is expected it should entered into force around October. The future civil proceedings will introduce many arbitration-like solutions in terms of the conduct of the hearing, but will also separate commercial proceedings, which will be governed by stricter and formalistic rules that could impact competition damages cases.