The claimant was an insurance broker, who asked an insurance company (the defendant) to propose an offer of complex insurance to one of his clients. However, the insurance company refused to conclude agreement with that client three times, because of high loss ratio. The claimant learned later about the fact that another insurance broker working with the defendant has made an offer and concluded the insurance agreement with the same client. The defendant claimed that the situation was the result of computing system error.
According to the claimant, the actions of insurance company constitute the act of unfair competition specified in article 15 section 1 clause 4 of the Act on Combating Unfair Competition because such actions, in particular different treatment of some clients, prevent other entrepreneurs from accessing the market.
The action was dismissed, because the prerequisites constituting the act of unfair competition specified in article in article 15 section 1 clause 4 of the Act on Combating Unfair Competition, were not met. These prerequisites have to be always in connection with article 3 clause 1 of the Act of Combating Unfair Competition. Preventing other entrepreneurs from accessing the market is the act of unfair competition, but only when it is against the law or good customs and jeopardizes the interest of another entrepreneur or customer.
The Court of Appeal decided that the sole existence of interest in pursuing protection against the acts of unfair competition is not enough to effectively pursue such protection. It is also necessary to prove that the interest has been infringed or at least jeopardized.
The threat of infringement of the interest may not be hypothetical, but it must be specified in the scope of occurrence risk of such infringement and of person responsible for it. Generally, the set of circumstances which increases the threat of damage has to be proven. It is usually impossible to prove the threat of infringement so precise as the infringement itself, therefore it is enough to present facts and evidence to prove the violation of competition rules and a court shall assess whether the risk of infringement has occurred.
In the case, isolated refusal of granting insurance protection could not decisively affect the position of the claimant on the insurance market and in the opinion of customers.
- Judgment of the Court of Appeal in Poznan of 7th august 2014, file ref I ACa 505/14