An important judgment in Poland concerning claims for damage caused by anticompetitive practices
In Poland the Act on Claims for Damage Caused by Violation of Competition Laws (the "Act") aimed at facilitating private enforcement of competition law and thus encouraging victims of anti-competitive actions to pursue their cases, has been in force for four years. Nevertheless, claims for damages seem to be gaining momentum only now. We have shared with you an update on private enforcement in Poland in the June alert, where we indicated, inter alia, the areas that raise interpretation doubts.
One of the most contentious issues concerns the limitation period in cases where the provisions of the Act relating to it are not yet applicable. The relevant provisions of the Civil Code and the jurisprudence allow for a number of divergent interpretations regarding, in particular, the moment from which the limitation period should commence depending on the nature and type of violation. The plaintiffs most often argue that the limitation period should be counted only from the moment of issuing the decision by the competition protection authority.
In this context an important ruling on this issue should be noted, in favour of the defendants in private enforcement cases. On July 9, 2021 a judgment was issued before the District Court in Gliwice in a case for compensation for damage resulting from an alleged mining chemicals cartel, found by a not final yet decision of the President of the Office of Competition and Consumer Protection (the "President OCCP”). The District Court in Gliwice dismissed the claim of one of the coal companies finding that the claim was time-barred. In the opinion of the Court, the claimant learned about the damage and the person obliged to repair it before the decision was issued by the President OCCP, from the official correspondence addressed to the claimant by the authority in the course of the anti-monopoly proceedings. This correspondence already indicated which entities were concerned by the antimonopoly proceedings and what charges were brought against them. It was also possible to establish the fact of suffering the damage. Therefore, it was from that moment to count the period of limitation.
In the discussed case, the provisions of the Act could be applied to a very limited extent, similar to some other damage claim cases pending before Polish courts. In order to meet the needs of the victims, the Act introduces changes to the limitation period, providing for:
- extension of the limitation period to 5 years;
- determining that this period will not commence for the duration of the infringement (and the limitation period referred to in Article 4421 § 1, second sentence of the Civil Code will run from the date the infringement ceased); and
- suspending this period for the duration of an investigation conducted by a competition protection authority.
It is therefore worth noting that the mere interpretation of the Act also indicates that the limitation period may begin to run before a decision is issued by a competition protection authority.
The judgment is not final and the plaintiff has the right to appeal.
The authors represent one of the defendants in the court proceedings.
