Polish government is currently carrying out legislative works on the draft act on actions for damages caused by an infringement of competition law which implements into the Polish legal system the Directive of the European Parliament and the Council 2014/104/EU 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.
According to the presented on the 15 November 2016 the government draft act, it regulates the liability in respect of infringement of competition and rules for bringing actions in this respect in civil proceedings.
This applies to compensation for harm resulting from infringements of articles 101 and 102 TFEU and articles 6 and 9 of the Act of 16 February 2007 on competition and consumer protection.
Importantly, the new act is supposed to introduce a presumption that a mere infringement of competition law causes harm. The presumption will have to be rebutted by the infringer. The same applies to the presumption of culpability for the harm.
The competent court for actions for damages is supposed to be district court, and claims may also be brought before the court in which there are already ongoing proceedings for damages caused by the same infringement of competition law.
In the proceedings for damages the court will be bound by the legal decision of the President of the Office of Competition and Consumer Protection (‘OCCP’) recognising practice as restricting competition or judgment in force delivered as a result of an appeal from such a decision.
In determining the amount of damages to be awarded the court may rely on the guidelines included in the Communication from the Commission 2013/C167/07 on quantifying harm in actions for damages based on breaches of art. 101 or 102 of the Treaty on the Functioning of the European Union and Commission Guidelines for national courts to facilitate the estimation of the share of the overcharge passed on to indirect purchasers.
In the absence of specific provisions in the new Act, the provisions of the Civil Code on tort will apply with regards to the liability for damages caused by the breach of competition law.
The limitation period for bringing an action for damages is supposed to be five years, and it will commence only upon cessation of the infringement. Bringing antitrust proceedings by the President of the OCCP or the European Commission for infringement underlying actions for damages will suspend the limitation period. The suspension is to cease one year after coming into force of a judgment finding an infringement of competition law or after bringing proceedings to an end in a different way.
The changes that are being prepared are designed to adjust Polish law to EU requirements and create greater safeguards for entities affected by the anticompetitive behaviour taking into account the fact of passing on the costs of infringements of EU competition rules to the end users.
The time limit for implementation of the Directive, as stipulated in its art.21 sec.1, expires on 27 December 2016, however due to the current progress of works on the Polish Act it should be expected that it will enter into force at a later date.