Major Step Taken Towards Implementation of the Damages Directive in Poland
On 1 March 2017, the Polish Government adopted a draft of the Act on Private Enforcement of Competition Law (the "Act"), which transposes Directive 2014/104/EU of the European Parliament and the Council of 26 November 2014, on Certain Rules Governing Actions for Damages under National Law for Infringements of Competition Law Provisions of Member States and of the European Union (the "Damages Directive") into the Polish legal system.
Civil lawsuits for damages are exceptionally rare in Poland, mainly due to the difficulty of proving the extent of the damage and the causal link between it and the infringement of competition law. Therefore, the new regulation is aimed at making it easier to enforce compensation from a company that has infringed competition rules. Below we set out the main rules introduced by the Act in its current shape.
Firstly, the Act introduces a presumption of culpability of the infringer as well as a presumption that losses incurred by the harmed entity/individual were caused by the competition law infringement. Both presumptions are rebuttable and the defendant has the right to contest them and prove otherwise in court.
Secondly, final decisions of the Office for Competition and Consumer Protection ("OCCP") will be binding for courts in antitrust damages cases. However, the Act will also be applied to competition law infringements with respect to which no proceedings were carried out (and no decision of the authority was issued).
Finally, under the new regulation, a claimant may request a court to order a defendant to disclose the evidence it possesses (such as a document or email), which may be crucial for the court to issue a judgment in the case. The only restriction is that the evidence obtained in this way can be used only in private enforcement proceedings. An obligation to disclose evidence can be imposed on the OCCP as well (if the evidence cannot be provided to the court in any other way); however, this rule does not apply to leniency statements and settlement submissions made by the infringer.
Although the claimant still has to quantify the damage suffered, the court will be entitled to base its judgment with respect to the quantification of damage on the guidelines issued by the European Commission and/or the advice of the OCCP or another national competition authority having insight into the case.
The Act will now be forwarded to the Parliament for further work, so certain details may still change. It looks like the Act may give entities and consumers harmed by competition law infringements opportunity and encouragement to sue infringing companies more often. In practice, however, the success of the Act will ultimately depend on the effectiveness of the OCCP as a public enforcer.