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Private enforcement – a new institution for combating infringements of competition law | SSW Legal Alert

As of 27 June 2017, every harmed person, be it an entrepreneur or a consumer, has obtained an instrument to counter market participants which engage in practices restricting competition. The pursuit of claims for compensation before civil courts, including actual damages and loss of profit has now been made possible by the Act on Private Enforcement of Competition Law of 21 April 2017 (the “Act”) Thereby, the institution of “private enforcement” has been introduced to our legal system, i.e. individual entitlement to compensation for a person that is harmed by the infringement of competition rules being in force on the community market, by another person.

I. Implementation of the Directive

  • The introduction of arrangements which facilitate the pursuit of claims for compensation in respect of an infringement of competition law was driven by the necessity to implement Directive No. 2014/104/EU of the European Parliament and of the Council of 26 November 2014 (the “Directive”).
  • According to the Directive, the newly introduced provisions should provide for, among other things:
    • universality of access to full compensation,
    • disclosure of relevant evidence which lies in the control of the infringer and/or third parties,
    • binding effect of the decisions of competition authorities for the court adjudicating on the relevant case,
    • a limitation period of at least 5 years,
    • joint and several liability of entrepreneurs infringing competition law as a result of joint activities.

II. Who may bring a claim?

  • The Act stipulates that the infringer is obligated to repair a damage caused to “anyone”. This means that both entrepreneurs and consumers have the right to bring action for damages.
  • The right to bring action for damages has been also conferred on parties which are only indirectly affected by the infringement. This is because the Act introduces a principle according to which if an infringement of competition law resulted in an excessive burden for the direct purchaser (the party buying products or services directly from the infringer), the excess burden is presumed to have been passed onto any indirect buyer (subsequent buyer).

III. Who may compensation be claimed from?

  • The liability under the Act rests with the market participants infringing competition law through the conclusion of agreements which are aimed at or result in eliminating, restricting or otherwise undermining market competition, or abusing a dominant position.
  • Examples of the infringement of competition law:
    - Prohibited agreement: fixing of prices for goods between entrepreneurs, or production limitation
    - Abuse of a dominant position: charging unfair prices or application of discriminatory or onerous conditions in similar contracts concluded with third parties; application of discount schemes under which discounts are not granted to all interested entrepreneurs but only to a group of them selected by the granting entity.
  • Importantly, when the use of a certain practice has been affirmed by a final decision of the President of the Office of Competition and Consumer Protection (OCCP) (alternatively by a final judgement issued following an appeal filed against such decision), the court will be bound by such affirmation. This binding force applies to all the market participants, not only to those against whom proceedings were carried out by the President of OCCP.
  • Moreover, the Act provides for joint and several liability of all the parties infringing the principles of competition. Having said this, the liability of small and medium entrepreneurs is subject to specific regulations.
  • The liability of the infringer of competition law is fault-based. Accordingly, the tort law provisions of the Civil Code apply.

IV. Taking of evidence

  • The pursuit of claims for compensation has been considerably simplified comparing to the generally applicable principles. Most importantly, the Act introduces a presumption that each infringement of competition law causes damage. The burden of demonstrating that the claimant has not suffered any damage, or the damage affected other participants of the supply chain, falls on the defendant (infringer).
  • The Act does also provide for a number of simplifications with regard to the quantification of damage. The court examining the case may:
    • rely on the guidelines set out in the 2013/C 167/07 Communication from the Commission and the guidelines of the Commission referred to in Article 16 of Directive 2014/104/EU of the European Parliament and of the Council;
    • seek advice of the President of OCCP or a competition authority of another EU Member State in establishing the amount of damage.
  • Another convenience available to harmed parties consists in the possibility of filing, after substantiating the plausibility of the claim and undertaking to use the evidence solely for the purposes of the procedure, a request for a court to order a defendant to disclose evidence (e.g. agreements, accounting documents or correspondence), if it may be crucial for the court to issue a judgement in the case. Such request may also concern the disclosure of evidence which may be in the files of a case investigated by a competition authority. According to the principle of equality of arms, such request may also be filed by the defendant. In order to ensure the enforceability of the court’s decision ordering the disclosure of evidence, under the Act such final decision has the status of an enforcement order against the party obligated to make the disclosure.

V. Before what court and by when?

  • The competent courts to recognise cases concerning the repair of damage resulting from the infringement of competition law are district courts.
  • The limitation period for claims resulting from the infringement of competition law starts running only once the infringement has ceased, and lasts for five years. Moreover, the limitation period is suspended in case when proceedings concerning the infringement of competition law are initiated by the President of OCCP or the European Commission/competition authority of another EU Member State.

VI. Representatives of industries particularly exposed to claims for compensation

  • Entities which are most likely to be faced with claims for compensation are the participants of the markets for the supply of mass market services/goods (energy, telecommunications, water supply, manufacturing and supply of construction products). This is due to the fact that such entities:
    • compete with a limited number of other participants,
    • are most frequently the addressees of decisions on the use of prohibited practices (see the above-mentioned binding effect of the assertion of infringement of competition law for a court),
    • provide services addressed to the widest group of customers.

Contact:

Wojciech Jaworski, Partner, Attorney at law, Court and arbitration proceedings departament, wojciech.jaworski@ssw.pl

Mariusz Nowakowski, Senior Associate, Attorney at law, Court and arbitration proceedings departament, mariusz.nowakowski@ssw.pl

Jakub Jędrzejewski, Counsel, Attorney at law, Competition law department, jakub.jedrzejewski@ssw.pl