Trade secret protection in Poland is governed by statutory law – ie, Article 11 of the Act of 16 April 1993 on Combatting Unfair Competition Practices (CUCP), where disclosing, using or obtaining someone else’s information that constitutes a trade secret constitutes an act of unfair competition. The present wording of Article 11 on the trade secret protection was introduced in 2018 as a result of the transposition of the Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (OJ L 157, 15.6.2016, p. 1–18) and is in force as of 4 September 2018. The wording of Article 11 of the CUCP is as follows:

“1. It is an act of unfair competition to disclose, use or obtain someone else’s information that constitutes a trade secret.

2. Trade secret means technical, technological, organisational or other information of economic value which, either as a whole or in a particular aggregation and collection of its elements, is not generally known to persons normally dealing with that type of information or is not easily accessible to such persons, provided that the person entitled to use or dispose of the information has taken steps, exercising due diligence, to keep it confidential.

3. The acquisition of information constituting a trade secret constitutes an act of unfair competition, in particular when it takes place without the consent of the holder of the right to use or dispose of the information and results from unauthorised access, misappropriation, copying of documents, objects, materials, substances, electronic files comprising the information or making it possible to infer its content.

4. The use or disclosure of information constituting a trade secret constitutes an act of unfair competition, in particular when it is done without the consent of the holder of the right to use or dispose of the information and in breach of an obligation to restrict its use or disclosure arising from a law, a legal act or another act, or when it is done by a person who obtained the information by committing an act of unfair competition.

5. The disclosure, use or acquisition of information constituting a trade secret shall also constitute an act of unfair competition if, at the time of disclosure, use or acquisition, a person knew or, exercising due diligence, could have known that the information had been obtained directly or indirectly from the person who used or disclosed it in the circumstances set out in paragraph 4.

6. The use of information constituting a trade secret in the production, offering, marketing, importing, exporting and storing of goods for these purposes shall constitute an act of unfair competition if the person performing the said act knew or, with due diligence, could have known that the characteristics of the goods, including their aesthetic or functional characteristics, the process of their manufacture or disposal had been substantially influenced by the act referred to in paragraph 1, performed in the circumstances referred to in paragraph 4.

7. The acquisition of information constituting a trade secret does not constitute an act of unfair competition if it is the result of the independent discovery or manufacture or the observation, examination, dissection, testing of an object in the public domain or in lawful possession by the person who acquired the information and whose authority to acquire the information was not restricted at the time it was acquired.

8. The disclosure, use or acquisition of information constituting a business secret does not constitute an act of unfair competition when it has occurred in order to protect a legitimate interest protected by law, in the exercise of freedom of expression or in order to disclose irregularities, misconduct, acting in violation of the law to protect the public interest, or when the disclosure of information constituting a business secret to employee representatives in connection with their functions under the law was necessary for the proper performance of those functions.”

The law provides only examples of types of information that can be protected as a trade secret: all technical, technological, organisational or other information provided that has economic value and is not publicly available or easily accessible (see 1.4 Elements of Trade Secret Protection).

The following may be considered a trade secret:

• technical information comprising all the information on the company’s equipment as related to the production cycle;
• technological information (know-how) comprising manufacturing methods of equipment, chemical formulas, designs;
• organisational information (information on the internal organisation of the entity, information flow, management patterns, reporting); and
• other information on clients and contractors, quotations, terms and conditions of business, on negotiated or concluded contracts, cost estimates, accounting documentation, commercial strategies, promotional plans, pricing policies, and discount schemes.

The required elements for trade secret protection are defined in Article 11 of the CUCP. According to this law, in order to be protected as a trade secret, the information must meet all of the following conditions:

• be of economic value;
• not be generally known to persons handling that type of information on a regular basis or not be easily accessible to such persons; and
• the person entitled to this information has taken steps, exercising due diligence, to keep it confidential.

One of the conditions for protection of trade secret is taking all reasonable measures to keep information confidential. Confidentiality of information must be manifested explicitly or implicitly by a person entitled to the information. In the event of a dispute, such a person bears the burden of proving that certain information did constitute a trade secret. It is important to first define precisely the nature of the information covered by confidentiality. Depending on the circumstances of the case, the following may be considered reasonable measures:

• IT locks, access control, restriction of access to premises where relevant documentation is located;
• restricting access to such information held on company computers;
• proper document circulation;
• monitoring and other technical safeguards – eg, IT network security;
• use of confidentiality clauses in contracts, declaration of confidentiality of documents sent electronically or by post – encryption, confidentiality disclaimers; and
• actions of a legal nature (NDA).

Disclosure of a trade secret to employees does not affect the availability of protection for the trade secret. Information does not lose its confidentiality when a certain group of people – eg, employees, are entrusted with this information and at the same time are bound to confidentiality.

Independent discovery or reverse engineering does not affect the trade secret. According to Article 11 point 7 of the CUCP, the acquisition of information constituting a trade secret – as a result of an independent discovery or manufacture or observation, examination, dissection, testing of an object in the public domain or in lawful possession by the person who acquired the information and whose authority to acquire the information was not restricted at the time of such acquisition – does not constitute an act of unfair competition.

There is no protection in Polish law that is unique to computer software and/or technology with regard to trade secrets.

Trade secret is indefinite and lasts as long as the information has economic value and is confidential. If the information loses its economic value or confidentiality characteristics, the information ceases to be a trade secret by operation of law. Therefore, a person entitled to this information should regularly audit measures introduced to keep information confidential – whether they are in place, accurate and efficient and whether it is necessary to undertake any new, more adequate steps to protect the trade secret against disclosure.

On the other hand, it is possible to disclose confidential information to a third party in a controlled manner. It will not affect the existence and duration of the trade secret protection provided that the agreement on the disclosure provides all necessary and reasonable measures to maintain the confidentiality by a third party like non-disclosure clauses under pain of contractual penalty. Furthermore, information does not lose its confidentiality if it comes into the possession of an unauthorised person, but when it is disclosed to the public.

The trade secret may be subject to licensing. Licensing does not affect the existence of a trade secret as long as the licensee is obliged to maintain the confidentiality during the licence agreement as well as afterwards. Such a licence agreement should put an obligation on the licensee to take all necessary and reasonable measures to maintain confidentiality by a third party, such as non-disclosure clauses, under pain of contractual penalty.

Trade secret differs from IP rights protection in Poland. Firstly, trade secret, contrary to IP rights such as patents, trade marks, or designs, is protected without registration or formalities; instead, the protection is dependent on legal and factual actions taken by a trader (the desire to keep information confidential). Secondly, trade secret can be protected for an unlimited period of time if certain conditions are met (see 1.9 Duration of Protection for Trade Secrets), while the protection of IP rights is limited in time (patents – 20 years, trademarks – 10 years with the possibility of renewal, economic copyrights – 70 years).

In practice, there are no situations of overlapping trade secret with IP rights. This mostly results from differences between trade secret and IPR, mainly patents. The main and fundamental characteristic of trade secret is its confidentiality, whereas a patent for an invention is public, subject to protection, but anyone interested in the invention can read the description and claims. On the other hand, discoveries, ideas, procedures, methods and operating principles, the copyright protection of which is excluded, may be protected as trade secrets.

The claims to which the plaintiff is entitled on the grounds of breach of trade secret, and which arise from the CUCP are tort claims. The CUCP clearly indicates what acts of trade secret violation constitute an unfair competition act and allow a plaintiff to bring a claim. Civil law also provides for a wider liability based on torts. According to Article 422 of the Civil Code, not only the person who directly caused the damage is liable, but also the person who induced or assisted another person to cause the damage, as well as the person who knowingly profited from the damage caused to another. This provision of law shall apply also in case of trade secret violation.

There may also be acts related to the violation of the trade secret in contractual relations, and then the liability for the breach of contract arises. For example, in an employment relationship, an employee who is bound by a confidentiality obligation also after termination of their employment may be sued for violation of such an obligation. The same also concerns other contractual relations where non-disclosure agreement is in place.

The CUCP provides for both civil and criminal liability for trade secret misappropriation, which are independent and may be pursued in parallel. The following persons can be the subject of criminal liability under Article 23 of the CUCP:

• a person, who contrary to their duty to the undertaking, discloses to another person or uses in their own business activity information constituting a trade secret where this causes serious damage to the undertaking;
• a person who, having unlawfully obtained information constituting a trade secret, discloses it to another person or uses it in his own business activity; and
• a person who discloses or uses information which constitutes a trade secret and with which they become acquainted through participation in a hearing or in other legal proceedings involving claims for an act of unfair competition in breach of a trade secret, or through access to the files of such proceedings, when the hearing has been closed in those proceedings.

The possible penalties include a fine, restriction of liberty or imprisonment for up to two years.

There is no straightforward answer to the question of extraterritoriality, including whether bringing a claim in Poland based on misappropriation that happens in another country is possible. In relation to acts of unfair competition, including the protection of trade secrets, Article 6 and Article 4 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) will apply. According to Article 6 point 1 of the Rome II Regulation, the law applicable to a non-contractual obligation arising out of an act of unfair competition shall be the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected. According to Article 6 point 2, where an act of unfair competition affects exclusively the interests of a specific competitor, Article 4 shall apply. In turn, according to the latter, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.

In each case it will be necessary to examine all aspects of the specific case, including whether the act of unfair competition (misappropriation of trade secret) affects the Polish market or interest of a trader on the Polish market.

Under Polish law, trade secret misappropriation may be the subject of a claim based on unfair competition. Misappropriation may be the disclosure, use, or acquisition of another party’s information constituting a trade secret. See1.1 Sources of Legal Protection for Trade Secrets where each of these misappropriations is defined in detail (Article 11 points 3-6 of the CUCP).

The requisite elements for a claim of trade secret misappropriation in Poland are:

• existence of a trade secret,
• unlawful acquisition, use or disclosure, and this act must constitute an unfair competition (see 1.1 Sources of Legal Protection for Trade Secrets); and
• the owner must prove that the defendant gained access through unlawful means.

Unlawful access would be sufficient; the use of a trade secret in business is not actually required.

There are no specific differences in pursuing claims based on trade secret misappropriation by an employee. The Labour Code in Article 100 § 2 point 4 imposes an obligation on the employee to keep confidential any information “the disclosure of which could expose the employer to damage”. This is, arguably, a highly subjective obligation that may not always be entirely verifiable by the employee on their own. Therefore, it is crucial for the employer to properly identify the relevant information group, so that there is no doubt in this regard. This is also recommended because, in fulfilling the statutory duty to exercise “due diligence”, the employer may simultaneously define the duration of this confidentiality obligation. The obligation to protect trade secrets does not automatically extend indefinitely after employment ends. Therefore, the parties may conclude a relevant NDA in this respect, but the means and consequences shall be reasonable and proportionate.

There are no specific provisions in relation to trade secrets between joint venture companies. In light of the legal framework, the conclusion of confidentiality agreements between joint venture partners becomes a necessary measure to protect confidential information.

Industrial espionage is covered by the law regarding trade secret protection, namely unfair competition provisions relating to acts of authorised use, and accessing confidential information having commercial value. An entrepreneur whose interests have been threatened or infringed may demand:

• cessation of the unlawful actions;
• removal of the consequences of the unlawful actions;
• a one-time or multiple statements of appropriate content and in the appropriate form;
• compensation for the damage caused, under general principles;
• the return of unjustly obtained benefits, under general principles; and
• a court order for an appropriate monetary sum for a specific social purpose related to supporting Polish culture or protecting national heritage – if the act of unfair competition was committed intentionally.

The court may also decide:

• to issue decisions regarding the products involved – such as ordering their destruction; and 
• at the request of the plaintiff, to order the defendant to publish the judgment or the contents of the judgment in a specified manner and to a specified extent, if it is justified by the circumstances of the act of unfair competition, and this publication may not reveal the trade secret.

The court, instead of granting the cessation of unlawful actions, removal of consequences of unlawful actions or issuing decisions regarding the products, may, at the request of the defendant, order the defendant to pay to the plaintiff appropriate remuneration. This remuneration must not exceed the amount that would have been payable at the time the claim arose for a licence granted by the right holder permitting the use of the trade secrets for a period not extending beyond the expiry of their confidential status, provided the conditions specified by law are met:

• the defendant, at the time the trade secret was used or disclosed, did not know, and could not have known with reasonable diligence, that the information had been obtained from the person who used or disclosed it in the circumstances set out in Article 11(4) (see 1.1 Sources of Legal Protection for Trade Secrets);
• granting the request for cessation of unlawful acts would cause the defendant disproportionate damage; and
• the obligation to pay remuneration does not prejudice the legitimate interest of the plaintiff.

Criminal liability applies also to industrial espionage (see 1.14. Criminal Liability).

The Polish provisions require the entrepreneur to take “necessary actions to maintain confidentiality”. Taking such actions is, on the one hand, necessary to ensure the confidentiality of information, while on the other hand, it demonstrates the entrepreneur’s intention to protect the given information.

These measures should include both physical protection and legal instruments (see 1.5 Reasonable Measures).

Physical and legal protection methods for trade secrets are not separate from each other. The relationship between them is such that trade secret protection will only be in place if the entrepreneur has taken specific actions to protect their secrets, as stipulated in the law: “necessary actions to maintain confidentiality”. Whereas information protection also occurs when information is legally protected (eg, through confidentiality agreements), technical security measures, even minimal, are always required. Confidentiality agreements or clauses in employment or civil contracts are not sufficient if access to the documents is unlimited.

The entrepreneur must apply security measures that guarantee the trade secret will not be accessed by unauthorised individuals.

Exit interviews of employees are not regulated in Poland. While not explicitly forbidden, the legal basis for collecting certain data, such as details about a departing employee’s new employer or the nature of their future role, is questionable. Employers may, however, take the opportunity to remind an employee who is leaving of any confidentiality or anti-competition clauses stemming from a contract they have signed, assuming such a contract is in place.

The issue of the distinction between an employee’s general knowledge and skills and protectable trade secrets is recognised in Polish jurisprudence. The general guidelines arising from the decisions of Polish courts are that personal experience and knowledge acquired by an employee over the years of employment constitute a part of that individual’s personal rights and, as a result, deserve legal protection and therefore may be used by the individual. Undoubtedly, drawing the appropriate distinctions in this area will not be simple in each case. Polish courts have emphasised that information regarding manufacturing technology, sales markets, and suppliers, used in the course of business by a former employee, “cannot be considered a trade secret within the meaning of the law, but rather experience and knowledge acquired during employment, which are not subject to protection for the benefit of the employer.” This perspective was further elaborated by the courts, stating that the situation involved the use of “general knowledge, in respect of which the employer cannot assert statutory claims.” Such a reservation may be justified in specific situations, since, as a rule, technology, customer lists, and supplier data are among the employer’s most closely guarded information.

In contrast, in its judgment of 29 January 2021, Case No V CSKP 7/21, the Supreme Court emphasised another important aspect: “The knowledge, experience, and skills acquired by an employee during employment do not enjoy statutory protection for the benefit of the enterprise, and the provisions of the Act on Combating Unfair Competition must not hinder employee mobility”.

The applicable regulations and case law do not specify particular best practices or methods to be followed prior to hiring or during the onboarding process. It would be a matter of internal practices of the employers, awareness of the employees and good conduct. The new employer may require the candidate to confirm in writing that they are not bound by non-compete or NDA clauses and they will not use any trade secrets from their former employer.

There are no special procedures for initiating a civil lawsuit alleging theft of trade secrets. However, the Polish Civil Procedure Code encourages parties to attempt resolving a case amicably first before bringing it to court. Therefore, it is advisable to send a C&D letter before initiating litigation, unless a trade secret owner has reasons not to do so. Then he/she should explain the reasons for not having tried to resolve the case amicably. An attempt at amicable settlement is not typically, nor does it need to be, undertaken if an application for an interim injunction has been filed.

Claims for acts of unfair competition are subject to a statute of limitations of three years. The statute of limitations begins to run for each infringement separately; for instance, this applies to a claim for an injunction.

However, a claim for compensation for damage caused by a tort or delict shall become time-barred after three years from the date on which the injured party became aware, or by exercising due diligence, could reasonably have become aware, of both the damage and the identity of the person liable for compensation. However, this period shall not exceed ten years from the date on which the event giving rise to the damage occurred.

Where an act of unfair competition involving the infringement of a trade secret constitutes either a crime or a misdemeanour, the limitation period for a claim for damages shall not end later than twenty years from the date on which the crime was committed.

To initiate a lawsuit, an owner must collect evidence, bring the case to the competent court (see 5.4 Jurisdiction of the Courts), pay a court fee. In cases with a minimum value of claim of PLN20,000 (approximately EUR 4,700), representation by advocates or attorney-at-law is mandatory. The court may exempt a party from the obligation to have a professional representative.

In Poland, specialised IP courts are competent in cases regarding combatting acts of unfair competition, including regarding trade secret. There are five regional courts (Polish: sądy okręgowe) in Warsaw, Gdańsk, Katowice, Poznań, and Lublin which are competent to examine the cases in the first instance. Which of these courts has jurisdiction depends on the residence or seat of the defendant. An action may also be brought before the court according to the place of the harmful event. However, the Regional Court in Warsaw is exclusively competent in cases concerning technical aspects, including technical trade secrets. There are two appeal courts (Polish: sądy apelacyjne), where appeals in trade secret cases may be lodged (Warsaw and Poznań).

There are no specific standards that are applicable to a trade secret claim. However, the claim must be well-justified, and all pieces of evidence should be given in the suit. Higher standard requirements are provided for in cases examined in commercial matters between entrepreneurs. In these instances, a plaintiff is obliged to set out all claims and provide all evidence in the suit. Failure to do so may result in the court disregarding any additional claims or evidence submitted at a later stage.

It is possible to seize the accused products before a final judgment and even before a suit is filed. To obtain it, it is necessary to file a motion for interim injunction showing that the claims are credible, and the case is urgent. Seizure is made by a bailiff.

Before initiating a civil lawsuit, it is possible to file a motion for prosecution. Evidence collected in criminal proceedings (searching and seizure of computer, documents, etc) may support a later civil case. Standard types of evidence, also in trade secret claims, include:

• documents;
• witnesses; and
• expert opinions.

The mechanisms for maintaining the secrecy of the trade secret during litigation are provided for in Polish laws. The court shall, at the request of a party, order a court session or part of a court session to be held “behind closed doors” (only a very limited number of attendees may be present) where circumstances constituting the secrecy of its business may be disclosed. Additionally, parties should clearly indicate in the filed briefs and materials which information is subject to confidentiality.

The CUCP also provides for criminal liability for any person who discloses or uses information obtained through their participation in a hearing or other legal proceedings, or through access to the files of such proceedings, in case of a hearing behind closed doors in such proceedings (see 1.14 Criminal Liability).

Any arguments and evidence can be employed in defence against allegations of misappropriation. The most effective of these are those which fundamentally undermine the very existence of a trade secret in the first place, namely:

• the information was widely known; or
• the owner did not introduce protective measures to maintain the confidentiality of the information.

Polish law does not provide for dispositive motions.

It is extremely difficult to estimate the expected costs involved in trade secret litigation. They depend on many factors, such as the factual background of the case, difficulties in collecting evidence to prove the claim, and the nature of the claims themselves. Cases seeking monetary compensation tend to be significantly more expensive, primarily due to the inherent difficulty in proving damages, which prolongs the litigation process and frequently necessitates costly expert opinions.

While contingency litigation is recognised in Poland, bar regulations do not permit lawyers’ fees to be calculated solely on this basis. Typically, an initial upfront fee is required, with a subsequent portion of the fee being a success-based payment. This way of calculating fees is not applied when non-pecuniary claims are sought.

While litigation financing is available in Poland, it is uncommon.

In Poland, the general rule is that civil claims are decided by a single judge. There are only a few types of civil claims that must be decided by one professional judge and two juries. Trade secrets disputes are decided by one professional judge. There are no legal means to apply for a jury in Poland.

In Poland, civil litigation is largely based on written submissions. The defendant is served by the court with the claim and granted a deadline (usually 14 days) to present their statement of defence, all facts, evidence, motions and allegations.

Subsequently, at the hearing (held in person or online) the parties present the position orally. The court may allow for submission of testimonies during the trial in person (not in written form), depending on the nature of the case, the arguments of the parties and facts to be proven by such witnesses. In many cases, witness testimonies are limited to written statements only.

Generally, in bigger cities (especially the capital city, Warsaw), it may take 24 to 36 months for a judgment in the first instance. Then, around 24 months for examination of the appeal. In other locations this process may take a shorter period of time.

The possibility of the presentation at trial of expert witness testimony is governed by the Polish Civil Procedure Code. In cases requiring expert knowledge, the court, after hearing the parties’ motions regarding the number and selection of experts, may appoint one or more experts to obtain their opinion. The court shall determine whether the expert opinion is to be presented orally or in writing. Usually, a written opinion is ordered, and subsequently the expert is summoned to a hearing to answer any questions of the presiding judge and/or the parties.

The need to rely on expert opinions in civil proceedings arises from the fact that resolving a civil case often requires, in addition to knowledge of legal provisions, specific expertise from various fields such as science, technology, art or commercial practice. It is the court that determines whether such specialised knowledge is necessary to resolve the case.

An expert may be a natural person (either a permanent court expert or an ad hoc expert). The court may also request an opinion from a scientific or research institute.

Court experts are those listed on the official register maintained by a regional court, appointed by the president of that court pursuant to the Law on the Structure of Common Courts.

The provisions of the Polish Civil Procedure Code allow for applying for the interim injunction either before a lawsuit is filed or concurrently with the submission of the lawsuit itself.

Article 730(1) § 1 of the Polish Civil Procedure Code outlines two conditions for granting such relief, with both conditions needing to be substantiated, namely:

• the existence of a claim; and
• the existence of a legal interest in securing the claim.

When granting an interim injunction before the initiation of proceedings, the court sets a deadline by which the lawsuit must be filed, with the penalty of the injunction being revoked should this deadline be missed. This deadline cannot exceed two weeks.

The court may condition the enforcement of the order granting interim injunction on the submission of a deposit by the entitled party to secure the claims of the obligated party or, depending on the circumstances, other persons resulting from the enforcement of the security order.

Under Polish law a plaintiff may demand:

• compensation for the damage caused, in accordance with general principles;
• surrender of unjustly obtained benefits, in accordance with general principles; and
• award of an appropriate monetary sum for a specific social purpose related to the promotion of Polish culture or the protection of national heritage – if the act of unfair competition was committed intentionally.

A plaintiff may, instead of the compensation, claim compensation for the damage by paying an amount of money equal to the remuneration which would have been due at the time of claiming it by virtue of the right holder’s consent to the use of the information constituting the trade secret.

Punitive damages do not exist in Poland.

Under Polish law, permanent injunctive relief is available for a successful trade secret claimant as part of the remedies for an act of unfair competition.

The claimant may request the court to permanently prohibit the unlawful use or disclosure of trade secrets. This may include an order to cease prohibited acts and to eliminate the effects of such acts.

The law allows for orders requiring the withdrawal, recall, or destruction of products that were produced using misappropriated trade secrets. While the recall is usually expected to be performed by the infringer, enforcement may also involve state authorities under enforcement proceedings.

Polish courts are cautious about restricting future employment. However, non-compete clauses or restrictions imposed through injunctions may be granted if proportionate and necessary to protect the trade secret – especially in cases of clearly unlawful behaviour. Courts strive to balance this with the right to work and employee mobility.

Permanent injunctions are theoretically unlimited in time but may be lifted if the trade secret loses its protected status (eg, becomes public knowledge) or if circumstances change significantly.

Under Polish law, the party winning a case can be awarded reimbursement; in such a case, the losing party must refund the costs borne by the winning party. However, for attorney’s fees, statutory law applies, which stipulates fees that do not correspond to the actual costs borne by a party. Instead, the amount awarded is based on statutory rates, which diverge substantially from prevailing market fees.

No specific formal requirements to seek such an award need to be met, the party must simply submit a motion for awarding its costs prior to closing the case.

The judgment issued in a case may include a decision on the reimbursement of the costs or a judge may decide that it will be done later by a judge-referee in a separate decision.

The costs of proceedings consist of various components, the most important of which include:

• court fees for filed pleadings and motions, especially the fee for the statement of claim initiating the proceedings;
• attorneys’ fees;
• travel expenses to court and compensation for lost earnings due to mandatory court attendance;
• mediation costs or fees for expert opinions; and
• translation costs.

No specific formal requirements to seek such an award need to be met; the party must simply submit a motion for awarding its costs prior to closing the case. It is common to submit a summary list of costs with receipts (eg, train tickets, invoices).

In Poland, the process for appealing a decision in a trade secret case follows the general rules of civil procedure. Both the claimant and the respondent have the right to appeal a judgment if they are dissatisfied with the court’s decision. This includes both factual and legal issues. An appeal must generally be filed within two weeks from the date the party receives the written judgment with justification. A party must request the justification within one week of receiving the judgment. Final judgments (Polish: wyrok lub postanowienie kończące postępowanie; ie, those ending the proceedings in the case) are always appealable.

Non-final decisions (Polish: postanowienia niekończące postępowania) can be appealed against only in limited situations – such as orders on security measures (eg, injunctions), costs, or interim relief.

The length of an appeal procedure depends on the complexity of the case and the workload of the appeal court. In general, appeal proceedings typically take from 12 to 18 months, or 24 months in Warsaw.

If the case is initially brought before a regional court (Polish: sąd okręgowy) (which is competent in trade secret disputes), the appeal goes to the appeal court (Polish: sąd apelacyjny).

The procedural rules are generally the same; however, the standard of review may be stricter at the appeal level.

In Poland, appeal courts (Polish: sąd apelacyjny) review both factual and legal issues, not just legal issues. The appeal court may re-evaluate evidence and even make independent factual findings. However, it usually relies on the case file and does not conduct a full retrial, unless justified by procedural errors or doubts about facts.

There is no rigid distinction in terminology like “de novo” or “abuse of discretion”, but legal issues are reviewed de novo (ie, the appeal court is not bound by the lower court’s interpretation) and factual findings are reviewed with some deference, though the court may overturn them if it finds that the first instance court misjudged evidence, omitted crucial facts, or violated procedural rules.

The procedural issue can be waived if not raised properly in the first instance. In order to preserve a procedural issue for an appeal, the parties must raise objections to the protocol during the trial. However, this does not apply to any possible appeal objections arising from the judgment itself, particularly its reasoning, which only becomes available after the case has been closed and a decision rendered (eg, the interpretation of facts or witness testimony as determined by a judge).

Appeals are usually decided in closed sessions without the parties being present.

However, a public hearing can be held if a party requests it, or if the court finds it necessary for the proper resolution of the case.

Live argument is not always required, and witnesses are rarely heard again at the appeal stage.

The injured party who seeks to enforce their rights in criminal proceedings should file a motion for prosecution. However, the criminal path is not always recommended, unless collecting evidence before initiating a civil case is necessary (see 5.7 Obtaining Information and Evidence). Criminal proceedings are often characterised by low efficiency and protracted durations, whilst the legal avenues available to injured parties are limited. The case is primarily led by public prosecution authorities, such as the police and the prosecutor’s office. Once the case is moved to court, it is typically handled by judges who often lack specialised experience in trade secret matters.

If the court concludes that calculating the damage is difficult, it may, based on Article 46 § 2 of the Penal Code, order compensation in the form of a restitution payment of up to PLN200,000 (approximately EUR48,000) instead. However, the injured party should not expect high compensation under a criminal procedure. Civil courts are experienced in damages claims. The criminal courts often award small amounts and state that the injured party may pursue a separate civil action to claim the full amount of damages, supported by a comprehensive evidentiary process.

Regarding penalties in the case of all three types of offences regulated in Article 23 of the CUCP, please see 1.14 Criminal Liability.

The severity of the penalty depends on the extent of the damage incurred by the entrepreneur as a result of the perpetrator’s actions.

The crime of trade secret violation, due to the various circumstances in which the perpetrator acts, may often have the features of an additional prohibited act, such as those under the Penal Code – eg, the unlawful acquisition of information or abuse of trust.

ADR mechanisms are available for resolving trade secret disputes in Poland.

Mediation is available in civil courts. It can be initiated voluntarily by the parties or by way of a court decision. The mediator may be appointed by the court, with the cost of mediation split between the parties. Usually, it is initiated at the beginning of the trial, although the civil procedure allows it at any stage of the trial. The parties may object to the mediation ordered by the judge. In other words, mediation cannot proceed without the silent consent of the parties (lack of objections). The mediation process lasts from a few weeks to three months.

Arbitration can be initiated if the parties concluded an arbitration agreement/clause. It can be held before the institutional court – eg, the Court of Arbitration at the Polish Chamber of Commerce or on an ad hoc basis. Depending on the complexity of the dispute, arbitration proceedings typically last between six and eighteen months. However, the costs associated with arbitration are significantly higher than those of public court proceedings.

One of the key advantages of ADR in Poland is speed – both mediation and arbitration are generally faster than litigation before the public courts. The parties may appoint mediators or arbitrators with specific expertise in, for example, IP and trade secrets. In view of the judicial crisis in Poland (constitutional disputes, political decisions on judges appointed by the body supervising the judicial system), arbitration may offer an additional advantage, namely a lower risk of the decision being later challenged.

A mediation procedure is confidential by law, with mediators bound by statutory confidentiality. Moreover, the parties cannot use any argument or admitted fact in further disputes.

Arbitration is not public unless the parties decide otherwise. The institutional arbitration courts impose strict confidentiality. In comparison, hearings held before public courts are public unless the party applies for a confidential trial due to the risk of revealing trade secrets (see 5.8 Maintaining Secrecy While Litigating).

Arbitration courts may impose interim injunctions, but a party seeking the injunction must subsequently apply to the public court for an enforceability clause.