Cartels 2019

Last Updated July 11, 2019

Poland

Law and Practice

Authors



Hansberry Tomkiel Sp.k is a unique competition law boutique that combines the experiences of former antitrust enforcers with that of former corporate counsel and law firm practitioners. The firm of Hansberry Tomkiel offers advice and representation in all areas of competition law with a focus on competition law-related litigation. The firm provides strategic advice and representation in complex competition cases in Poland, Brussels and the US. The law firm works with both Polish and international companies. To ensure a comprehensive and global approach, it co-operates with well-established and respected national as well as international law firms in Europe and the US.

The statutory bases for challenging cartel behaviour are:

•       the Act on Competition and Consumer Protection of 16 February 2007 (the “Competition Act”) as amended on (Journal of Laws of 26 February 2019, item 369);

•       Article 101(1) of the Treaty on the Functioning of the European Union (OJ C 167 of 13.06.2013, p. 19) (“TFEU”); and

•       the Private Enforcement Act, which became effective on 27 June 2017 (Journal of Laws of 12 June 2017, item 1132).

The Chairperson of the Office for the Protection of Competition and Consumers (the OPCC) is responsible for enforcing the Polish Competition Act and, since 1 May 2004, has been authorised to conduct investigations pursuant to Article 101(1) of the TFEU if a suspected violation affects trade between Member States.

The OPCC is a central administrative body. The chairperson can issue decisions imposing financial penalties both on undertakings and managers for violating Article 6 of the Competition Act. Article 6 is the equivalent of Article 101(1) of the TFEU. The Chairperson is not authorised to conduct proceedings under the criminal code.

On 27 June 2017, the Act on private enforcement of competition law (the “Private Enforcement Act”) entered into force, introducing provisions of the EU Damages Directive (2014/104/EU) into Polish law.

Prior to the enactment of the Private Enforcement Act, a plaintiff could (and still can) file a civil action pursuant to Article 189 of the Polish Civil Procedure Code, which is the basis, in conjunction with the Competition Act or Articles 101 and 102 of the TFEU, or both, to seek a judicial declaration of the invalidity of a contract or an act in law.

There are additional legal grounds an injured party may use when lodging a civil claim to declare conduct to be in violation of the competition law and to be awarded damages.  Such grounds are found in the:

•       Polish Civil Code;

•       Unfair Competition Act; and

•       Act on Pursuing Claims in Group Proceeding (as a member of a class).

The legal definition of a cartel is in Section 2(3) of the Private Enforcement Act), which reads:

“A cartel is an agreement or concerted practice between at least two entrepreneurs who compete against each other, aimed at co-ordinating competitive behaviour on the market or at exercising impact on significant competition factors, in particular consisting in determination or co-ordination of purchase or sales prices or other conditions of commercial transactions, including in the scope of intellectual property rights, determination of the level of production or sales, division of markets or customers, including bid-rigging behaviour, restriction of import or export, or anti-competitive activities against other competitors.”   

The Competition Act does not use the term "cartel". Instead, it refers to "agreements restricting competition". The full definition of "agreements" may be found in Article 4(5): "agreements" shall mean: a) agreements concluded between entrepreneurs, between associations thereof and between entrepreneurs and their associations, or certain provisions of such agreements, b) concerted practices undertaken in any form by two or more entrepreneurs or associations thereof, c) resolutions or other acts of associations of entrepreneurs or their statutory organs.

There is a five-year statute of limitations for a violation of Article 6 of the Competition Act (which is the equivalent of Article 101(1) of the TFEU). In the case of a charged company, the limitations period is calculated as beginning to run at the end of the year in which the practice ceased. For charged managers, the limitations period begins to be counted at the end of the year in which the manager ceased his or her participation in the competition-restricting practices (Article 93).

As to the subjective scope of the liability and its limits, under Polish competition law the addressees of cartel prohibition are most of all undertakings entering into cartel agreement. Moreover, since January 2015 the OPCC has had the power to charge managing persons who intentionally allowed the company to enter into agreements prohibited by Article 6(1)(1)-(6) and by Article 101(1)(a)-(e). Bid-rigging, prohibited by Article 6(1)(1)(7), is not an offence for which a manager can be charged under the Competition Act.

As to the territorial scope of the liability and its limits, the Competition Act provides the general rule of extraterritorial jurisdiction of the OPCC. The Competition Act is invoked if the competition-restricting conduct has or may have effects in the Republic of Poland (Article 1 of the Competition Act).

Polish laws in the field of private and public international law, are regulated, inter alia, by agreements concluded between Poland and other countries which govern the rights and obligations of states with respect to rights and duties and the application of the principle of equality.

Cartel investigations, referred to as ‘anti-monopoly proceedings’, are instituted ex officio by the OPCC. Often, but not always, investigations begin with ‘explanatory proceedings.’ In explanatory proceedings, there are no formal parties. The purpose of such proceedings is for the OPCC to determine whether a violation of the Competition Act may have occurred that would justify opening anti-monopoly proceedings. In some cases, the OPCC institutes anti-monopoly proceedings without having opened explanatory proceedings. Although the Competition Act provides that explanatory proceedings are to last no longer than four months and in more complicated matters, no longer than five months, such proceedings can often last from several months to over a year.

By serving charges, the OPCC formally notifies a company or manager when they become subjects, and thus parties of an anti-monopoly investigation. Although anti-monopoly investigations should take no longer than five months, pursuant to Article 92 of the Competition Act, they can be extended by the OPCC, and frequently take at least a year or longer to be concluded.

The OPCC may conduct three types of fact-finding investigative procedures:

•       inspection at the premises of any undertaking (Article 105a);

•       search of an undertaking’s premises and items, if there are grounds for assuming that the information or items concerned are in those places (Article 105n), and

•       searches of residential premises or any other premises, real property or means of transport (Article 91).

Each of the above can be performed unannounced. The first two types of dawn-raids can be carried out by the OPCC officials alone or also with the assistance of the police or other controlling bodies. The third type (searches of premises of natural persons) is carried out by the police with the assistance of authorised OPCC employees.

The scope of the OPCC’s powers to conduct inspections and searches is wide and is reflected in the obligation of the parties being inspected or searched to co-operate fully with the OPCC. Specifically, the Competition Act provides that the inspected/searched party, or a person authorised thereby, has an obligation to provide access to premises under investigation, to provide the requested information and also to provide access to materials and items that may constitute evidence in a case (Article 105d).

The Competition Act differentiates between searches and inspections with regard to the scope of the OPCC’s competence to obtain access to documents, data-carrying devices or anything elses. During an inspection, the OPCC must ask the undertaking for access to documents, information or anything else. During a search, the OPCC’s officers may perform the investigation and gather relevant information and data without prior authorisation of the undertaking being searched.

As explained in response to 2.2 Dawn Raids, the scope of the OPCC’s powers to conduct inspections and searches is very wide. Companies being inspected or searched, including their authorised representatives, are obliged to co-operate fully. Within the inspection procedure they are obliged, inter alia, to provide, upon the OPCC’s request, information and access to files, records, all kinds of official letters and documents, and copies and extracts thereof, electronic correspondence, information technology data carriers and other devices containing information technology data, or access to information technology systems. The OPCC’s powers also include access to IT systems owned by another party (which is not formally a party to the inspection or search), provided that this system contains data belonging to the inspected party and which is related to the subject-matter of the inspection, to the extent that the inspected party has access thereto (Article 105b(1)(2)).

The Competition Act limits the OPCC’s authority to collect documents to those related to the subject-matter of the investigation (Article 105 b(1)(2), Article 105q(1)).

In a relatively recent ruling, the Court for Competition and Consumer Protection ascertained (see: Competition Court’s Order of 7.03.2017 r., XVII Amz 15/17) that the entire forensic search of electronic storage devices, including computers and servers, must be performed within the searched premises and, for the purpose of the proceedings, the OPCC should only extract data within the scope of the investigation but should not extract restricted, privileged information.

During an inspection, the inspected parties, in addition to their authorised representatives, are obliged to co-operate fully with the inspecting authority – Competition Act (Article 105d).

Spoliation of potentially relevant information and also other ways of obstruction of the inspection can be subject to high financial penalties. The OPCC may impose upon an undertaking a fine of the equivalent of EUR50,000,000, if the undertaking has, even unintentionally, prevented or hindered the commencement or conduct of an inspection or a search, including failing to comply with obligations imposed on the party being searched (Article 106(2)(3-4)). For the same kind of conduct, a maximum fine of 50 times the average monthly remuneration can be imposed on certain natural persons, including persons holding a managerial position or who are members of the managing body of an undertaking (Article 108(2)(1-2) and Article 108(3)(1)).

A company that is being inspected or searched and natural persons have an obligation to provide the OPCC with requested information (Article 105d). Based on that provision, the OPCC will interview officers and employees of the company being inspected or searched on facts concerning the investigated conduct.

There are no specific procedural requirements for such interviews. The OPCC’s practice is to conduct an interview of persons selected in accordance with their engagement in or knowledge about the alleged cartel after instructing him or her on their rights and obligations: the obligation to provide requested information, the right to refuse to provide information (on conditions referred to in 2.13 Other Relevant Privileges), and on financial penalties for non-co-operation. A protocol of each interview is prepared and signed by the representatives of the OPCC, as well as by the person being interviewed. If an interview is recorded, a copy will be furnished to the interviewee.

After the search or inspection, the OPCC prepares a report that sets out: the party under investigation, the investigating officers, the time of the inspection or search, the subject-matter and scope of the inspection, facts ascertained during the inspection and a list of documents collected. The protocol should be signed by representatives of the OPCC and the undertaking, who, however, is not obliged to sign the protocol (Article 105j).

The Competition Act does not introduce any specific rules concerning the rights of officers or employees to counsel. In practice, counsel (in-house or external) regularly advise their clients on how to conduct themselves during the OPCC’s dawn raids, including during interviews that take place during a dawn raid. Counsel can be present when a company representative is interviewed during a dawn raid.

The Competition Act neither suggests nor requires that individuals obtain separate counsel.

As there are no parties during preliminary proceedings, there is no right of access by an investigated company to the official investigatory file. 

During anti-monopoly proceedings, parties have a right to review and copy (make scans or photos of) the OPCC’s case file throughout the investigation. Thus, they can read and copy a complaint, in addition to any written queries and demands of the OPCC to parties and industry players, as well as the responses and material submitted. Case files do not include references in the documents or responses of undertakings that are considered to be business secrets or to be privileged.

The OPCC has the right and competence to issue written, formal requests for documents and information during preliminary and anti-monopoly investigations. Such requests can be made to both parties and non-parties.

In addition to formal requests for the provision of information and documents, the OPCC can hold an administrative hearing, to which all parties are invited, and of which the proceedings are protocolled. It is rare, however, for the OPCC to hold such hearings.

Finally, the OPCC may interview company representatives during a dawn raid.

The OPCC can use various sources of information to investigate alleged cartel behaviour. In addition to documentary evidence and testimony, the OPCC also relies on economic evidence obtained through studies and analysis made by its Department of Economic Analysis.

In April 2017, the OPCC launched a pilot whistle-blower programme. This new investigative tool provides an anonymous channel to report illegal practices. Within the framework of the programme, a dedicated hotline and email address have been set up for anyone who wishes to submit information about a possible breach of competition law.

Undertakings are required to provide all information and documents that are available to them upon request of the OPCC chairperson.

A company that fails to provide the requested information or that provides false or misleading information may be fined in an amount equivalent to EUR50,000,000.

The Competition Act does not contain a legal regulation concerning attorney-client privilege. Only with regard to searches does the Act refer to specific rules in the code of criminal procedure establishing an “envelope procedure” that allows the court to resolve disputes between the OPCC and the searched party on whether a certain document is privileged (if so, the court should send it back to the company) or not (if so, the court allows the OPCC to collect it).

Although no rules on the existence or extent of an attorney-client privilege exist as to inspections and other procedures carried out by the OPCC, the grounds for asserting the attorney-client privilege can be derived directly from the provision of Article 6 of the ECHR.

The Competition Act does not contain specific provisions concerning the privilege against self-incrimination. Solely for the purpose of inspections and searches, the Act explicitly limits the general obligation of co-operation with the OPCC if this would lead to criminal liability for the person or for other persons from the circle of his or her closest relatives (Article 105 d (2)).

The privilege against self-incrimination in proceedings before the OPCC must be derived from general rules at a constitutional level, from the EU law and from the European Convention of Human Rights, by which Poland is bound.

In our experience, it would be rare for a company or individual to resist a request by the OPCC for information or documents during a cartel investigation. In each request for material or information, the OPCC reminds the recipient of the request that “in the case of even an unintentional failure to provide information or in the case of disclosure of false or misleading information, the chairperson of the OCCP may impose a fine equal to EUR50,000,000.”

Each company whose documents have been submitted to the OPCC, whether during a dawn raid, in response to a request for the Authority, or voluntarily, has the right to request that those parts of a document containing a business secret in the meaning of Article 11.2 of the Unfair Competition Countermeasures Act of 16 April 1993, or a secret subject to protection under separate regulations, will not be disclosed to another party, parties or the public, in accordance with Article 69 of the Competition Act.

Parties have the right to present their arguments or defences as soon as the OPCC opens anti-monopoly proceedings. Customarily, parties choose first to review the OPCC’s case file, which is augmented by additional documents during the investigation. Leniency material, if there is an applicant, is most often available for review close to the conclusion of the anti-monopoly investigation. Prior to the issuance of an SO, parties may consider making a submission of their position, and certainly parties will do so after the SO is issued, which usually occurs at the end of the investigation.

A leniency applicant must meet the requirements of Article 113a of the Competition Act and follow the procedures set out in the Council of Ministers’ Leniency Regulation of 2014 and in the OPCC’s Leniency Guidelines.

In order to qualify for a full waiver of a fine, an undertaking must be the first applicant to submit a motion in which it demonstrates that: it has stopped participating in the cartel activity not later than the date when it filed its application; it did not coerce others into take part in the cartel; and that its motion contains evidence that is sufficient to render it possible for the OPCC Chairperson either to open an antitrust investigation or to issue a decision charging a cartel. If, however, the first leniency applicant cannot show that it did not coerce others to take part in the cartel, it will be eligible only for a reduction of a fine and not for a full waiver.

Regardless of whether the first applicant is eligible for a full waiver of a fine, the second and subsequent leniency applicants will not be eligible for a full waiver of a fine, but, rather, may benefit from a reduction in any fines imposed as long as they provide the OPCC with evidence that will contribute significantly to a final decision and declare that they have ceased to participate in the cartel at the time of filing their leniency motions.

The leniency regulations provide for markers both for full immunity and reduced fines leniency applicants.

The leniency procedure is available for both undertakings and managers.

According to Article 50 of the Competition Act, only entrepreneurs are obliged to provide written information at the request of the Competition Office. Natural persons may provide such information on their own initiative or upon the request of the OPCC. If, however, those individuals refuse to provide the requested material, they cannot be fined for the refusal.

Officers or employees may be nevertheless interviewed during dawn raids, as described in 2.5. Procedure of Dawn Raids.

The OPCC has the right and competence to issue written requests for documents and information during preliminary and anti-monopoly investigations. Such requests can be made to the equivalent of targets, that is, to parties who have been named as charged parties in the OPCC’s Decision to open anti-monopoly proceedings.

If the OPCC is seeking information that may be located in other jurisdictions, it may request that such information be requested by the Competition Authority in that jurisdiction. The formal basis for such a request is Council Regulation (EC) No 1/2003 of 16 December 2002.

On occasion, the chairperson of the OPCC has requested information directly from a foreign company (eg, case DOK-1/2015; vaccines for foxes).

In accordance with the Competition Act, public administration bodies are under an obligation to render accessible to the OPCC Chairperson files in their possession as well as information relevant to proceedings conducted before the chairperson of the OPCC.

In addition, co-operation between authorities and the exchange of information is also based on agreements which are aimed at defining the principles of such co-operation and exchange of information. There may be restrictions on access to information that is secret eg, bank secrecy, if such documents are not related to the proceedings conducted by the OPCC.

Such co-operation is undertaken by the chairman of the OPCC, inter alia, with the General Prosecutor, the Internal Security Agency, the Central Anti-corruption Bureau, and the police. As a result of such co-operation, the OPCC obtains evidence for its investigations.

Co-operation between EU Member States and the European Commission is regulated by Council Regulation No 1/2003 of 16 December 2002. In order to enforce Articles 101 and 102 of the TFEU, the Commission and the competition authorities of the Member States have the authority to transfer and use as evidence any material of a factual or legal nature, including confidential information.

National competition authorities may, in the territory under their jurisdiction, carry out any checks or other assertions under national law on behalf of a Competition Authority of another Member State to determine whether there has been an infringement of Articles 101 or 102 of the TFEU. Any exchange and use of information gathered in this way takes place in accordance with Article 12 of Regulation No 1/2003/EC. At the request of the Commission, a Competition Authority is obliged to carry out a control recognised by the EC as being necessary (Article 22 (2) of Regulation No 1/2003).

Other than bid-rigging, an offence under the Criminal Code, violations of the Competition Act are not criminal offences. Prosecutors enforce criminal offences, not the OCCP.

The OPCC is not authorised to bring civil actions before ordinary civil courts in cartel matters.

The OPCC often investigates a cartel in which several parties have been charged in a single proceeding.

The burden of proof lies with the OPCC to establish the facts, evidence and assessments upon which it bases its decision that a cartel existed. The Competition Act expressly provides that the burden of proving that an undertaking satisfies Article 8 exemption criteria (which equate to the Competition Act’s equivalent of Article 101(3) of the TFEU) rests upon the undertaking invoking that defence. In addition, the undertaking bears the burden of proving that it has discontinued the challenged conduct (Article 10 (3) of the Competition Act).

Anti-monopoly proceedings in Poland are administrative in nature. It is the chairperson of the OPCC who is authorised to collect evidence and to determine whether a violation of the Competition Act occurred.

Polish law provides rules as to the usage of evidence obtained from one proceeding in other proceedings. The rules differ for situations when the exchange of documents is to be processed between the proceeding conducted by the OPCC and for those when also other authorities or courts are engaged.

The Competition Act clearly sets out that information obtained in the course of proceedings before the OPCC may be used in any other proceedings conducted by the same authority (Article 73(2)(2)).

The Competition Act is more restrictive with regard to the exchange with other authorities. The law establishes a general rule that information obtained in the course of proceedings may not be used in any other proceedings conducted on the basis of separate provisions (Article 73(1)). At the same time, the law formulates several exceptions, including permission to provide information from the OPCC proceeding:

•       for the purpose of penal proceedings conducted by way of a public complaint procedure, or fiscal penal proceedings;

•       for the European Commission or competition authorities of the EU Member States under Regulation No 1/2003/EC and Regulation No 2006/2004/EC;

•       for other competent authorities, if certain information may indicate that any separate provisions have been infringed;

•       for the purpose of private enforcement, within the limits set out in the Private Enforcement Act; and

•       for regulatory authorities responsible for the market for telecommunications and postal services, as well as management of fuels and energy.

Each time the OPCC includes information obtained from an undertaking within other proceedings, it is obliged to inform the undertaking about it (Article 73(6)).

During its investigatory proceedings, the OPCC may demand that companies submit certain evidence necessary to clarify a matter. The rules of proof are set out in the Competition Act, but in non-regulated areas, the provisions of the Code of Civil Procedure apply. Proof and official documents can be used as evidence. During investigatory proceedings, it is also possible to take evidence from the witness, a party of the proceedings, or to consult an expert or a research institute. In the course of the proceedings, the OPCC may conduct a hearing. Such administrative hearings are conducted under the rules of administrative procedure, but in particular formal aspects, civil procedure rules are used.

It is not unusual for parties of cartel investigations to instruct competition economists to prepare reports on, for instance, the lack of harm or the existence of consumer benefits when arguing that an alleged agreement lacked anti-competitive intent, harm, or illegality.

During its investigations, the OPCC recognises the attorney-client privilege and a company’s right to have its business secrets protected.

In relation to the same facts, one anti-monopoly investigatory proceeding is usually convened. The exception is for an investigation of bid-rigging, for which simultaneous cartel proceedings by the OPCC and criminal proceedings by a prosecutor before a criminal court are possible.

Article 106(1) of the Competition Act empowers the OPCC chair to impose an administrative fine on an undertaking taking part in vertical or horizontal anti-competitive conduct of up to 10% of the gross revenue earned by the undertaking in the accounting year preceding the year in which the fine was imposed. Fines are set as a percentage of an undertaking’s turnover gross revenue and are not limited to a percentage of the value of an undertaking’s turnover affected by the illegal conduct.

The amended Competition Act, in force from 18 January 2015, now empowers the OPCC chair to sanction individuals for engaging in horizontal or vertical violations of Article 6 of the Competition Act by the imposition of a fine of up to EUR500,000.

The provision of Article 89a of the Competition Act concerns settlement procedures. Pursuant to this provision, at the final stage of the proceedings, the chairperson of the OCCP may ask the parties to proceed with the procedure of voluntary submission to punishment, if the chairperson believes that this will contribute to expediting the proceedings. If the parties respond positively to this invitation, they will be able to count on penalties decreasing by 10%, thereby giving up the possibility of appealing the decision of the OPCC. To our knowledge, there is no jurisprudence on settlements at the present time.

According to the Public Procurement Law, excluded from the contract award procedure are undertakings that entered into an agreement aimed at distorting competition in a contract award procedure (Article 24(1)(20)), provided that the organiser of a tender is able to demonstrate this by the use of appropriate proof.

It is commonly interpreted that, under the Procurement Law provision cited above, a decision of the chairperson of the OPCC finding that an undertaking has engaged in bid-rigging collusion would constitute sufficient grounds for that undertaking to be excluded from other tenders.

Other than bid-rigging, an offence under the Criminal Code, violations of the Competition Act are not criminal offences. Prosecutors enforce criminal offences, not the OCCP.

Article 7 of the Private Enforcement Act sets out a rebuttable presumption that a competition law infringement results in harm. Consequently, plaintiffs in a follow-on case only have to prove the extent of the harm suffered, whether it be the actual loss and/or lost profits. With regard to quantifying the loss, the Private Enforcement Act  refers a civil court to the recommendations set out in guidelines of the European Commission guidelines in Communication 2013/C 167/07 from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the TFEU and the guidelines of the European Commission referred to in Article 16 of 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 (OJ L 349 of 05.12.2014, p. 1). The above-referenced EU Guidelines are not mandatory for a court to follow, and under Article 32 of the Private Enforcement Act, a civil court is directed that ”the extent not provided in this chapter, proceedings for compensation for damage caused by an infringement of competition law are governed by the provisions of the Act of 17 November 1964 – Civil Procedure Code (Journal of Laws of 2016, item 1822, as amended). Moreover, under Article 31(2), “[u]pon request of the court, the President of the Office of Competition and Consumer Protection or a competition authority of another Member State of the European Union may assist the court with the determination of the amount of damage, if the evidence collected and the available information so permit.”

Neither the Competition Act nor the OPCC’s fine guidelines recognises compliance programmes as a factor when imposing sanctions and penalties.

Consumer redress can be imposed by the chairperson of the OCCP in a commitment decision, but such decisions are not adopted in cartel cases.

Within a month of being served with a decision by the OPCC chair, a party has the right to appeal the decision to the Court for the Protection of Competition and Consumers (the Competition Court), a court of first instance.

An appeal to the Competition Court is filed with the OPCC chair, who must forward the appeal and case files to the Competition Court promptly, but no later than three months from the date the appeal is lodged (Article 81(2)).

The Competition Court will judge a case based upon the merits and procedure. A judgment of the Competition Court is subject to appeal with the Court of Appeals.

A final judgment of the Court of Appeals may be the subject of a final appeal, referred to as a cassation, to the Supreme Court. The Supreme Court’s acceptance of a cassation is limited to cases in which there is a serious legal issue or a need for clarification by the Supreme Court to avoid discrepancies in jurisprudence or when the challenged judgment is obviously wrong.

A decision by the OPCC chair upheld by the Court of Appeals is considered as final, meaning that any fine issued will be due and payable once the Court of Appeals has ruled and upheld the imposed fine. Despite such a decision being final, and any fine imposed being obligatory, a party may appeal to the Supreme Court.

The EU’s Damage Directive was implemented into Polish law by the Act of 21 April 2017 on the private enforcement of competition law (the Private Enforcement Act). 

Prior to the enactment of the Private Enforcement Act, a plaintiff could (and still can) file a civil action pursuant to Article 189 of the Polish Civil Procedure Code, which is the basis, in conjunction with the Competition Act or Articles 101 and 102 of the TFEU, or both, on which to seek a judicial declaration of the invalidity of a contract or an act in law.

There are additional legal grounds that an injured party may use when lodging a civil claim to declare conduct to be in violation of the competition law and to be awarded damages. Such grounds are found in the:

  • Polish Civil Code;
  • Unfair Competition Act; and
  • Act on Pursuing Claims in Group Proceeding (as a member of a class).

The Group Claims Act has been in force since 19 July 2010. This Act concerns cases in which one type of claim is demanded by at least ten people. The scope of the Group Claims Act is limited to consumer rights cases, dangerous product liability cases and tort actions, which include any infringement of the Competition Act, and which are redressable by the Group Claims Act.

A three-judge panel decides upon the admissibility of a group claim. If the court admits a claim, it will order the publication in the press of an appropriate announcement on the initiation of proceedings and will allow persons to join the proceedings within a two-month period.

The Group Claims Act allows for making both pecuniary and non-pecuniary claims. Cases concerning pecuniary claims are allowed under the condition that the claimed value for each group member is unified, taking into consideration all common circumstances of the case. Thus, the amount of a claim must be generally unified for each member of the group, although the unification may be done in sub-groups. A sub-group must consist of at least two persons.

A group must be represented by a claimant or representative, a person who is a group member or a consumer spokesperson. Under the Group Claims Act, an attorney can be paid in the form of a contingency fee based upon the amount of the value awarded. An attorney’s fee cannot exceed 20% of the awarded amount.

A defendant has the right to request that the court order the claimant to pay a deposit as security for costs of the proceedings. A deposit cannot exceed 20% of the value of the claim.

There is a rebuttable presumption in the Private Enforcement Act that any overcharge to a direct purchaser was passed on to an indirect purchaser of the products.

The Private Enforcement Act provides rules and limits of admissibility of evidence obtained from the OPCC’s proceedings. With regard to evidence in the OPCC’s files, a civil court may order the OPCC to disclose it only if it is impossible or excessively difficult to obtain it from an opposing party or a third party (Article 17(2)). Specific conditions of admissibility concern documents obtained by the OPCC within the leniency and settlement procedures. Leniency statements and settlement proposals are not subject to disclosure (Article 18(1)), whereas information prepared by a natural or legal person specifically for the purposes of anti-monopoly proceedings, information prepared by the OPCC and provided to parties during such proceedings and withdrawn settlement proposals may be disclosed only after the proceedings before the OPCC have been terminated (Article 18(2)).

To our knowledge, private damage actions proceed only infrequently to completed litigation.

Attorney fees are generally awarded to the winning party. The reimbursement of a winning party’s attorneys' fees, however, is limited to the amounts set out in the Regulation on Advocates' Tariffs and the Regulation on Legal Advisers' Tariffs.

Litigation costs are generally awarded to the winning party. The reimbursement of attorneys' fees is limited to the amounts set out in the Regulation on Advocates’ Tariffs and the Regulation on Legal Advisers' Tariffs.

First-instance court judgments can be appealed to the relevant court of appeals (if a regional court heard the case in the first instance) or to the relevant regional court (if a district court ruled in the first instance). A verdict of the higher court may be further appealed to the Supreme Court in a cassation in limited circumstances.

The OCCP does not publish guidelines relating to cartel enforcement, but the following guidelines refer to cartel cases:

•       leniency guidelines;

•       guidelines on setting fines in competition cases;

•       guidelines on settlement procedure; and

•       guidelines for presenting a statement of objections.

Hansberry Tomkiel Sp.k

14 Cegłowska Street,
01-803 Warszawa

+48 22 428 12 80

office@hansberrytomkiel.com www.hansberrytomkiel.com
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Hansberry Tomkiel Sp.k is a unique competition law boutique that combines the experiences of former antitrust enforcers with that of former corporate counsel and law firm practitioners. The firm of Hansberry Tomkiel offers advice and representation in all areas of competition law with a focus on competition law-related litigation. The firm provides strategic advice and representation in complex competition cases in Poland, Brussels and the US. The law firm works with both Polish and international companies. To ensure a comprehensive and global approach, it co-operates with well-established and respected national as well as international law firms in Europe and the US.

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