Antitrust Litigation 2025 Comparisons

In addition to the public law enforcement of competition law violations by the relevant authority in Poland (the president of the Office of Competition and Consumer Protection (OCCP)), a party can lodge civil damage actions. Private damage actions are regulated by the Act of 21 April 2017 on Claims for Compensation for Damage Caused by Infringement of Competition Law (the “Damage Act”), which implemented EU Directive 2014/104/EU (the “Compensation Directive”) into Polish national law. The Damage Act came into force on 27 June 2017.

The basis on which a claimant is allowed to pursue a damage claim is a violation of:

• Article 101 or Article 102 of the Treaty on the Functioning of the European Union (TFEU); or
• the prohibitions against anti-competitive agreements and abuses of a dominant position set out in Article 6 and Article 9 of the Polish Act of 16 February 2007 on Competition and Consumer Protection (the “Competition Act”).

Owing to the nature, complexity, and long duration of an average damage action case, as well as the relatively low enforcement activity of the OCCP resulting in a small number of follow-on cases, there are still not many final judgments in the private enforcement of competition law. A significant number of private damage actions ruled upon by the courts still concern civil damage claims that – although filed after the effective date of the Polish Damage Act – concern damages that presumably occurred prior to the Damage Act’s effective date. In such cases, the Damage Act nevertheless applies to a limited extent (eg, orders requiring the disclosure of evidence, civil courts being bound by a final non-appealable infringement decision of the OCCP, and rules for determining the amount of damage).

Since the Damage Act came into force, there have been no legislative amendments. One of the more common issues in cases presently pending before the courts is the statute of limitations for claims of violations that ended before the Damage Act came into force. In effect, since the Damage Act came into force, the courts have been engaged in solving interpretative doubts around transitional provisions regarding limitation periods.

The Polish legislature has adopted special transitional provisions. In general, if a claim relates to a violation that ended before the Damage Act came into force, the limitation period is determined based on the previous statute of limitations regulations (which link the beginning of the limitation period with obtaining knowledge of the damage and perpetrators). However, if an injured party in such a case could only learn about the damage and the perpetrator by exercising due diligence, the limitation period runs anew from the date of entry into force of the Damage Act.

The subject of the disputes before courts hearing damage actions was whether the statute of limitations should start to run from the date of entry into force of the Damage Act, irrespective of the fact that the statute of limitations had already started to run pursuant to the pre-Damage Act legal provisions (based on the fact that the plaintiff had knowledge of the damage suffered and those who caused it). In a number of judgments, the courts refused to accept such a view, which – if accepted – would, in effect, have resulted in a second statute of limitations for such claims that started to run anew with the entry into force of the Damage Act.

An important issue often litigated has been the starting date of the statute of limitations in follow-on cases. Although the courts overwhelmingly accept the position that this date is the publication of the decision of the competition authority (in line with the jurisprudence of the ECJ ‒ for example, case C-267/20, Volvo and DAF Trucks), according to one of the lines of jurisprudence, some Polish courts ruled that earlier dates (than the publication date of an OCCP decision) were the starting point. Such judicial decisions ruled that events – for example, numerous media reports and a public announcement on the OCCP website about the initiation of the investigation regarding particular cartel behaviour (judgment of the District Court in Warsaw, 28 October 2022, XX GC 74/19) – were determinative for establishing a starting date for the statute of limitations to run.

The Competition Act forms the statutory basis for the prohibition of anti-competitive agreements and abuse of dominant position. The last of significant amendments to the Competition Act were enacted on 20 May 2023 and implemented into Polish law the Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 (the “ECN+ Directive”) – the aim of which was to empower the competition authorities of the EU member states to be more effective enforcers and to ensure the proper functioning of the internal market.

The prohibition of anti-competitive agreements in Polish law (Article 6 of the Competition Act) is similar to the prohibition in Article 101(1) of the TFEU. The principles on the basis of which it is possible to justify a restriction of competition are also similar. Article 8 of the Competition Act provides an exemption to the prohibition of anti-competitive agreements, similar to that in Article 101(3) of the TFEU. Likewise, the Competition Act’s prohibition against abusing a dominant position (Article 9) concerns anti-competitive conduct corresponding to that prohibited by Article 102 of the TFEU.

With regard to public enforcement, the OCCP is the only public authority authorised to enforce the Competition Act. In cases of a restriction of competition that represents a threat to the public interest, the OCCP institutes competition investigatory proceedings ex officio.

As regards private enforcement, the governing Polish law is the Damage Act, in force since 27 June 2017 (so far, without subsequent amendments), which implements the Compensation Directive into Polish national law. The Damage Act applies to civil actions concerning anti-competitive conduct that continued through 27 June 2017 as well as, to a limited extent, to conduct that finished before that date. The Damage Act provides for the 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.

Pursuant to Article 3 of the Damage Act, the perpetrator of the infringement is obliged to compensate the injured person for damages caused by the infringement of competition law. With regard to establishing liability for the damages, the prerequisite of “fault” must be proven.

A plaintiff can also rely on other legal grounds, applicable prior to the enactment of the Damage Act – in particular, the Polish Civil Code and the Act of 17 December 2009 on Pursuing Claims in Group Proceeding (as a member of a class).

In the event of an unfair trading practice being used (such as hindering others’ access to the market), which is also an infringement of the competition law, the company whose interest is threatened may also base its legal claims on the provisions of the Act of 16 April 1993 on Combating Unfair Competition (the “Unfair Competition Act”). However, the usefulness of the Unfair Competition Act is limited to cases in which the purpose of a plaintiff’s claim is to seek the discontinuation of alleged illegal conduct or the removal of its effects, but not damages. For an award of damages, it is the Damage Act that remains the proper legal basis for such cases as described earlier (Article 34 of the Damage Act and Article 18(1a) of the Act on Combating Unfair Competition).

In matters of pursuing damage claims, issues of court jurisdiction – both in terms of subject matter and local jurisdiction ‒ are regulated by the Polish Code of Civil Procedure and the Damage Act.

Damage actions fall within the competence of civil regional courts (Article 11 of the Damage Act). As a general rule, the court of local jurisdiction is where the defendant has its registered office or where the damage occurred (according to the Polish Code of Civil Procedure). The parties may also stipulate by agreement which court will have local jurisdiction.

If a damage case is pending before another court concerning the same violation of competition law, a plaintiff may file a lawsuit in that court (Article 12 of the Damage Act). In addition, for the purpose of accelerating the handling of trials and the uniformity of rulings, if multiple cases concerning the same violation are pending before multiple courts of first instance, each of these courts may request that the others refer their cases to it for joint adjudication (Article 13 of the Damage Act).

A civil court is bound by a final decision of the president of the OCCP finding a violation of the competition law (Article 30 of the Damage Act).

The Damage Act does not explicitly provide that a civil court is also bound by the decisions of competition authorities of other EU member states, nor does it refer to decisions of the EC. A civil court may, however, recognise a violation of competition law found by a competition authority of another EU member state on the basis of a presumption of fact (Article 231 of the Polish Civil Procedure Code). In addition, a plaintiff presenting evidence in support of its claim may submit a decision of a foreign competition authority for consideration by the court. With regard to a decision of the EC, the principles of uniform application of EU competition law set forth in Article 16(1) 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 (OJ L 1, 4 January 2003, pages 1–25) apply. When a court rules on damages for violations of Article 101 or 102 of the TFEU, which are already the subject of an EC decision, civil courts in the EU may not issue rulings contrary to the decision adopted by the EC.

Moreover, Polish courts must also avoid issuing decisions that would conflict with a decision “contemplated” by the EC in proceedings it has initiated. In such a scenario, a national court may assess whether it is necessary to stay its proceedings.

A court may oblige the OCCP to disclose the evidence it gathered in an investigation. In addition, at the request of the court, the OCCP or the competition authority of another EU state may – under certain conditions – assist the court in determining the amount of damages.

A plaintiff must show that there was a violation of competition law. It is presumed that a violation of either Article 101 or Article 102 of the TFEU and their Polish law equivalents causes harm (Article 7 of the Damage Act). Once a plaintiff has established that there has been a violation of competition law, the burden is on the defendant to prove that the violation did not occur, that the violation did not cause any harm, or that the undue burden caused by the violation was passed on to the plaintiff’s buyers.

Regarding the existence of a violation, a civil court is bound by a final and non-appealable OCCP decision finding a violation (Article 30 of the Damage Act). With regard to decisions issued by the competition authorities of other EU member states, a court may recognise a violation of competition law found by an authority of an EU member state on the basis of a presumption of fact (Article 231 of the Polish Code of Civil Procedure). When ruling on a claim for damages arising from a violation of Article 101 or Article 102 of the TFEU that is already the subject of an EC decision, a civil court may not make a ruling contrary to the decision made by the EC.

There are rebuttable legal presumptions in the Damage Act. First, as indicated earlier, a violation of competition law (of either Article 101 or Article 102 of the TFEU and their equivalents in the Polish Competition Act) is presumed to cause damage. This presumption in the Damage Act is broader than the presumption in the Compensation Directive, which limits the presumption of harm to cartel violations only (Article 17(2) of the Compensation Directive). Second, if a violation results in an overcharge, the direct purchaser is presumed to have passed on the overcharge to its customer – ie, the indirect purchaser (Article 4(1) of the Damage Act). This legal presumption of passing on an overcharge can only be invoked by an indirect purchaser when seeking damages directly from an infringer.

The pass-on defence is available. A party that asserts a pass-on defence shall in principle carry the burden of proof.

The Damage Act (Article 4) introduced a rebuttable presumption of passing on an overcharge to an indirect purchaser. This presumption establishes the principle that a direct purchaser of goods or services from an antitrust violator has shifted the excessive burden to an indirect purchaser to whom it has sold the affected products or services. In other words, a direct purchaser ‒ by raising the price of its products or services – has shifted all or part of the overcharge to its customers and, by doing so, has reduced its own harm. The burden of proving that the plaintiff has passed on the alleged overcharge to its customers is on the defendant (Article 4 of the Damage Act, Article 232 of the Code of Civil Procedure, and Articles 12–14 of the Compensation Directive).

As mentioned in 2.4 Proof, the pass-on presumption can only be invoked by an indirect purchaser who seeks damages directly from the infringer.

The rules on limitations are regulated by Article 9(1) of the Damage Act. It provides that a claim for compensation for damage caused by a competition law violation shall be time-barred after five years from the date on which the aggrieved party learned or with due diligence could have learned about the damage and about the person obliged to repair it. The limitation period does not start running during the infringement period and cannot be longer than ten years from the date the infringement ceased.

The Damage Act also provides that the limitation period is suspended when:

• the OCCP opens an explanatory or anti-monopoly proceedings; or
• the EC or a competition authority of another EU member state opens proceedings for infringement of competition law – the subject of which is an infringement of competition law giving rise to claim for damages in question.

Pursuant to Article 9(3) of the Damage Act, the time during which limitation periods are suspended ‒ as described immediately above – shall cease one year from the date of a decision finding a competition law infringement becomes final and non-appealable or the investigatory procedure is terminated in a different manner.

Depending on the circumstances of a specific case, it can take a court of first instance a few years to issue a judgment. Parties then may appeal to the court of second instance and, depending on the case, may also be entitled to other extraordinary remedies such as an appeal for cassation to the Supreme Court. The Supreme Court will accept only cases based on grounds relating to:

• a violation of substantive law through incorrect interpretation or incorrect application; or
• a violation of procedural rules if this defect could have had a significant impact on the outcome of the case.

Infringements of the Competition Act are torts that can be pursued pursuant to the Group Claims Act. The Group Claims Act concerns claims in cases in which one type of claim is sought by at least ten claimants. The scope of the Group Claims Act is concentrated on consumer rights cases, dangerous product liability cases, and tort actions.

A three-judge panel will decide upon the admissibility of a group claim. If the court admits a claim, it will order the publication (on the court’s website, on the websites of the parties or their representatives, or in the press) of an appropriate announcement on the initiation of proceedings and will allow persons to join the proceedings within a period no shorter than one month and no longer than three months. Thus, the Group Claims Act uses the opt-in approach, which means that only those persons who expressly agreed to be included can be members of the group.

The Group Claims Act allows for claiming both pecuniary and non-pecuniary claims.

A group must be represented by a claimant or representative, a person who is a group member, or a consumer ombudsman. When a claim results from activity of financial institutions (eg, banks, insurance companies), a group may be represented by the Financial Ombudsman. Pursuant to the 2024 amendment to the Group Claims Act, a claim relating to protection of collective interests of consumers can be brought by an authorised representative, who will be registered by the OCCP.

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

As explained in 4.1 Statutory Basis, Poland uses an opt-in system for collective actions.

Both direct and indirect purchasers can pursue their claims through class actions. The Group Claims Act regulates civil judicial proceedings in cases in which claims of one type are asserted, based on the same or the same kind factual basis.

For claims to be brought as group proceedings, there must be at least ten claimants and the claim must be based on the same factual basis. Pursuant to the 2024 amendment to the Group Claims Act, claims concerning protection of collective interests of consumers may also be based on the same legal basis.

Cases concerning pecuniary claims are allowed on 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 subgroups. A subgroup must consist of at least two persons. The above-mentioned restrictions do not apply to consumer claims.

The general rule is that a case falls within national jurisdiction if a defendant has a domicile or habitual residence or seat in Poland. Moreover, Polish jurisdiction applies if the case concerns:

• an obligation arising from a legal action that has been performed or is to be performed in Poland;
• an obligation resulting from tort that arose in Poland;
• the activities of the defendant’s plant or branch located Poland; or
• in the case of property right claims, if a defendant has property or property rights in Poland of significant value in relation to the value of the claim.

Polish jurisdiction applies to all parties jointly and severally liable provided that at least one party is subject to Polish jurisdiction.

Within the EU, jurisdiction in civil cases is regulated by 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 (“Brussels I bis”).

The Polish legal system does not have a procedure for disclosing documents akin to that of the common law system. There is no obligation under Polish law for parties to exchange or to provide one another with documents or information prior to the commencement of litigation.

The Damage Act, however, contains provisions that enable the parties to obtain evidence. According to Article 17 of the Damage Act, for the purpose of damage proceedings, a claimant may ask the court to order the defendant, a third party or a competition authority (which, as defined in Article 2.5 of the Damage Act, means the EC, the OCCP, or a competition authority of another EU member state) to disclose relevant evidence in their possession. The same request for disclosure of evidence may be made by a defendant, provided that the evidence thus obtained will be used only for the purpose of the pending proceeding. A court is entitled to reject a motion for the disclosure of evidence if the motion does not meet the requirement of proportionality.

In line with the Compensation Directive, the Damage Act provides for particular limitations on the disclosure of evidence included in the files of a competition authority. Such evidence may be obtained only if it is impossible or excessively difficult to obtain it from other sources.

The Damage Act prohibits the disclosure of leniency statements and settlement submissions, whereas information prepared by a natural or legal person specifically for the proceedings of a competition authority, information that a competition authority has drawn up and sent to the parties during its proceedings, and withdrawn settlement submissions may be disclosed only after the completion of proceedings before a competition authority. The above-mentioned documents obtained by a party to the court proceeding contrary to the above-mentioned rules cannot constitute evidence for the purpose of civil proceedings. Additionally, Article 29 of the Damage Act clearly sets out that evidence – other than the foregoing – that an individual or legal person obtained exclusively by access from a case file of a competition authority may only be admissible at the request of that person or its legal successor.

The legal professional privilege is a fundamental legal right that protects confidential communications between lawyers and their client from being disclosed without the client’s permission.

Pursuant to Polish regulations, a legal adviser and an advocate are obliged to keep secret everything they learn during the course of providing legal assistance. Pursuant to the Polish Code of Civil Procedure, a legal adviser/advocate has the right to refuse to answer a question if their legal professional privilege would be violated and a court cannot exempt them from this obligation.

Information and materials from companies co-operating with competition authorities are valuable sources of information for plaintiffs pursuing claims for damages. However, in accordance with general standards, access to this kind of evidence is limited.

The Damage Act provides the rules for and limits of admissibility of evidence obtained from a competition authority’s proceedings. With regard to evidence in a competition authority’s files, a civil court may order the authority to disclose evidence that can be used to establish relevant facts in a civil case and only if it is impossible or excessively difficult to obtain it from an opposing party or a third party (Article 17(2) of the Damage Act). The are specific conditions of admissibility for documents obtained by a competition authority within leniency and settlement procedures. Leniency statements and settlement proposals are not subject to disclosure (Article 18(1) of the Damage Act), whereas information prepared by a natural or legal person specifically for the purposes of competition investigatory proceedings, information prepared by a competition authority and provided to parties during such proceedings, and withdrawn settlement proposals may be disclosed only after the proceedings before the competition authority have ended (Article 18(2) the Damage Act).

Furthermore, in addition to the Damage Act’s limitations on the admissibility of leniency and settlement documents, the Competition Act sets out rules to protect such documents in the OCCP’s files from unauthorised disclosure. The Competition Act clearly provides that a party to OCCP proceedings may not use its access to leniency statements or settlement proposals disclosed within such investigation for purposes other than exercising its rights of defence in court cases connected with the OCCP proceedings to which it is a party, regarding the division of the fine imposed jointly and severally on various companies (Article 70(2) of the Competition Act). Moreover, OCCP may impose a fine of up to 50 times the average remuneration on anyone who used such information and documents in a way that violated the restrictions on their use (Article 108(5) of the Competition Act).

The procedure for examining a witness is set out in the Polish Code of Civil Procedure. As a rule, a witness gives testimony orally. They answer the court’s questions and then those of each party. A court assistant prepares a protocol of the witness’ testimony. In exceptional cases, if the court so decides, a witness may provide testimony in writing. Parties to the proceedings have the right to participate in the examination of a witness and to ask them questions. In certain special situations, as defined by law, other persons (eg, experts) may also be present. The court makes a free evaluation of the testimony of witnesses, taking into account all of the evidence collected.

The use of evidence and testimonies of experts and economists is not uncommon. An important distinction, however, is the weight placed on the evidence provided by a private expert (ie, one called by a party as opposed to a court-appointed independent expert). There is no general restriction placed upon a party from hiring an expert to draft and submit an opinion on the claimed violation or damages. Such an expert is referred to as a private or party-appointed expert. The weight placed on such evidence is low and considered to be on par with the weight of any witness called by a party. The reason is that the Polish judicial system assumes that a private expert will be biased towards the party that calls (and usually commissions) them and thus such opinions will be considered as part of that party’s evidential submissions.

Either party or the court itself may call for the appointment of an independent expert witness from the official list of court expert witnesses. The evidential weight attributed to the testimony of such a witness is higher than that attributed to a private expert witness. Typically, a court will consult with the parties before choosing and instructing an expert. A court-appointed expert most often submits a written opinion to the court. The selection of the expert as well as the content of the opinion may be challenged by the parties.

Damages are typically assessed to compensate financially assessable damage, including actual losses and lost profits, and may include interest from the time of harm until payment.

Pursuant to Article 31(1) of the Damage Act, when determining the amount of damage caused by infringement of competition law, the court may use the guidelines contained in Commission Communication 2013/C 167/07 on quantifying damage in pursuing claims for damages for breach of Article 101 or Article 102 of the TFEU, as well as the EC guidelines referred to in Article 16 of the Compensation Directive.

Private claims for damages arising from breaches of competition law are calculated on the basis of the principle of full compensation.

It is a defendant’s burden to prove that the claimant passed on the alleged overcharge to its own customers (Article 4 of the Damage Act, Article 232 of the Code of Civil Procedure, and Articles 12–14 of the Compensation Directive).

If the basis for the determination of compensation is prices from a date other than the date of determination of compensation, the injured party is also entitled to statutory interest from the date on which the prices were the basis for the determination of compensation until the due date of the claim for compensation.

The Damage Act introduces the main rule of civil liability for violations of competition law. An aggrieved party has the right to claim full compensation from the infringer, and the infringer is obliged to compensate any damage caused to anyone by its infringement of competition law, unless the infringer is not at fault (Article 3 of the Damage Act). It is, however, the Polish Civil Code that regulates the issue of liability in situations where liability for damage rests with more than one person. If damage is caused by a breach of competition law for which several persons are responsible, their liability is joint and several (Article 441, Section 1 of the Polish Civil Code). All joint and several debtors remain liable until the aggrieved party is fully satisfied.

This general rule of joint and several liability is supplemented by Article 5 of the Damage Act, which provides the following.

• Although companies released from penalty because of leniency are jointly and severally liable towards their direct and indirect purchasers as well as to their direct and indirect suppliers, they are liable towards other victims only when it is impossible to obtain full compensation from other infringers,
• The liability of SMEs is limited. Such entity shall be jointly and severally liable only towards its direct purchasers or indirect purchasers or direct suppliers or indirect suppliers if its share in the relevant market is lower than 5% throughout the entire duration of the infringement and its joint and several liability without the limitations resulting from this provision would constitute an irreversible threat to the economic viability of their business and would result in a total loss of the value of their enterprise. This rule does not apply when a SME played a leading role in the infringement or induced others to participate in it. The limitation of liability also does not apply if such entity was previously found to have violated the competition law.

Under general rules, if the damage was the result of an action or omission by several persons, the person who repaired the damage may demand from the others the return of the appropriate part, depending on the circumstances and particularly on the fault of a given person and the extent to which the given person contributed to the damage (Article 441, Section 2 of the Polish Civil Code). This regulation applies also under the Damage Act.

However, the Damage Act regulates separately limitations on the contribution by certain third parties to the amount of damages already compensated by one of the perpetrators of the infringement. The Damage Act limits the right of the infringer who already compensated the damage to demand contributions from the leniency applicant exempted from penalty. From such a leniency applicant, compensation may not be demanded in an amount higher than the amount of damage caused by that entity to its direct purchasers or indirect purchasers or direct suppliers or indirect suppliers. (This limitation does not apply if the damage concerns the injured party who is not a direct purchaser or an indirect purchaser or a direct supplier or indirect supplier of any of the infringers who are jointly and severally liable) (Article 5(3) of the Damage Act).)

Injunctive relief is available. A civil court may grant relief if a plaintiff has established the likelihood of the validity of its claim and its legal standing. As an expedited, non-formalised proceeding, it is assumed that prima facie evidence of the existence of a claim is not required, but the claim must be supported by source evidence. The procedure usually lasts from a few weeks to a few months. Other parties are not notified until the issuance of the judicially granted relief. If a first instance civil court grants injunctive relief, the other party can appeal the ruling.

If the party who has been awarded injunctive relief fails to file a full claim within a defined time or its claim is otherwise dismissed, the defendant ‒ within one year after the claim arises (collapse of the injunctive relief) ‒ is entitled to a claim for damages caused by the execution of the injunctive relief.

In civil proceedings, parties may resolve their dispute amicably either in court or otherwise. A party may attempt to settle a case amicably by filing a call for a settlement. In its call, a party presents a proposal for its conciliatory resolution. There is no obligation for the other party to agree to the proposed settlement nor for a court to accept the settlement proposal.

Mediation is a voluntary, confidential method of dispute resolution in which the disputing parties ‒ with the help of an independent and neutral mediator ‒ themselves come to an agreement.

Pursuant to Article 6 of the Damage Act, if an injured party concludes a settlement with one of the infringers who is jointly and severally liable, the injured party may claim from the other infringers compensation for the damage minus the amount corresponding to the amount that the settling infringer would have been obligated to pay. To the extent that the injured party cannot obtain compensation from the other infringers, it may demand such compensation from the settling infringer, unless the settlement agreement provides otherwise.

Third-party financing is not regulated by Polish law. Such financing of litigation takes place in Poland to a limited extent and without specific regulations.

A court decides on the costs in any decision concluding the case before each instance. As a rule, the losing party is obliged to reimburse the opponent – at the opponent’s request ‒ those costs required for the proper enforcement of its rights and/or defence (“trial costs”).

Necessary trial costs for a party represented by an attorney include legal fees (but not more than the fee rates set by separate regulations) and the attorney’s expenses, as well as court costs, and the costs of the party’s appearance in person ordered by the court. If a party does not have an attorney, the necessary costs of litigation include the court costs paid by the party, the cost of travel to the court by that party, and the equivalent of the earnings lost by appearing in court. In addition, parties represented by an attorney are reimbursed the costs in an amount according to the legal provisions on attorney’s fees.

Pursuant to the Polish Code of Civil Procedure, a judgment of a court of first instance can be appealed to a court of second instance. An appeal should be based on specific grounds that justify the modification or necessity of revoking the judgment under appeal. The appellate charges may concern violations of procedural law, defective resolutions of factual issues, and improper resolutions of legal issues. In an appeal, new facts or evidence may be presented, but the party offering such new evidence should prove that:

• the submission of such evidence was not possible during the proceedings before the court of first instance; or
• the need to present the new evidence arose after the first-instance court’s ruling.

The Damage Act plays crucial role in the legislative framework for antitrust litigation in Poland and remains a rare example of solid and unchanging legal acts in Poland. It has not been amended since its entry into force on 27 June 2017, whereas the Polish Competition Act has been amended 16 times. In the case of Polish private antitrust litigation, it is difficult to clearly assess whether the constancy of the rules helps. There are no official statistics on the number of court cases concerning private claims for infringement of competition law in Poland. In that regard, the authors are not aware of any comprehensive study giving statistics and outcomes of private claims for damages within the EU since the Compensation Directive. However, the number of judgments issued in such cases is increasing, which supports the growing confidence in the development of antitrust litigation in Poland.

Compared to the Compensation Directive, Polish rules on private damages have some features that could be seen as an advantage for those who claim for damages. The Compensation Directive’s presumption of harm is limited to cartel infringements. Article 17(2) of the Compensation Directive reads: “It shall be presumed that cartel infringements cause harm. The infringer shall have the right to rebut that presumption.” Notably, as mentioned earlier, the Damage Act’s scope of the presumption of harm is wider than that of the Compensation Directive because it applies not only to infringements caused by cartels but to every infringement of competition law (including prohibited vertical agreements and abuses of dominance).

Thus the existence of a presumption of harm in claims for damages concerning abuse of dominance, for instance, is a factor that signals the uniqueness and attractiveness of the Polish legal system to potential plaintiffs in claims for damages based upon Article 102 of the TFEU and claims for damages based on Article 9 of the Polish Competition Act.

The OCCP has issued more decisions finding violations of Article 101 than of Article 102 of the TFEU (or of their Polish law equivalents). It must be stated clearly that the total number of OCCP decisions on abuses of dominance is very low. According to official data, which can be found in the OCCP’s annual reports, only two such decisions were issued in 2024 (interestingly, neither found a violation). There were no decisions on abuse of dominance in 2022 or 2023.

Owing to the above-mentioned circumstances, it makes sense that a plaintiff will most likely have to file a standalone action if it wishes to bring a claim for damages based upon an abuse of dominance. Thanks to the Damage Act’s broad presumption of harm, the chances of succeeding with such a claim for damages will be enhanced.