2017 brings about a seismic shift in private antitrust enforcement in many EU countries including Poland. This is the result of EU Directive 2014/104/EU on antitrust damage actions which is being implemented in Poland by adopting the Act of 21 April, 2017 on claims for compensation for damage caused by competition law infringements, which came into force on 27 June 2017.
Under the new law, private enforcement can be sought by any entity which suffered loss as a result of an infringement of competition law, regardless of whether it is a direct or indirect purchaser of a product or service. The injured party has the possibility to claim full compensation, that is both damnum emergens
and lucrum cessans
. The claimant can now request access to the documents of the company suspected of a breach of the antitrust regulations, provided that such a request meets the proportionality rule.
The new rules enable pursuing damages from any undertaking, whether large or small, Polish or foreign, by consumers or other entities present on the market. However, the liability of small and medium-size enterprises and those cooperating with the authorities under the leniency programs may be limited.
The infringers will have to face not only the potential severe sanctions from the antitrust authorities, but also a serious risk arising from facilitated and more effective pursuing damage claims in civil courts. The significant amendments in the court procedure remove obstacles usual for claiming compensation for infringements of the antitrust law. The companies may also be forced by the court to produce certain evidence.
Anyone who sustained damage due to infringement of the antitrust law is entitled to demand a proper compensation. To achieve that in a more effective manner, the new law introduces the following facilitations and legal presumptions in favour of the claimants:
- Presumption of the infringer’s fault
The undertaking responsible for the infringement is obliged to compensate the loss arising from it unless it is not culpable. The new law introduced a rebuttable presumption that the infringer is culpable. Therefore, the company accused for antitrust actions will not be found liable only if it proves that, having behaved rationally and with proper diligence, it could not be aware of the infringement. The law itself, however, does not provide a list of such exculpating circumstances. They will have to be determined on the case-by-case basis.
- Facilitations regarding proving the harm
The law introduces also the presumption that any infringement, whether on the EU level or only on the domestic one, results in harm. The injured party will have to prove only the extent of the harm to obtain damages.
With regard to quantification of harm the law introduces also another facilitation. The court may ask the antitrust authorities of any EU member state for guidance on assessing the damage. The court can also rely on the general guidance provided by the European Commission on compensation for infringements of the EU law.
Another facilitation is the possibility for the claimant to rely on final and binding court orders and decisions of the antitrust authorities confirming the infringement of the antitrust law. Under the new law, the court is bound by such decisions with regard to that matter. Therefore, the fact of the infringement cannot be overruled in the compensation proceedings.
If evaluation of the harm cannot be done precisely on the basis of available evidence, the court will have discretion to assess the amount of the loss. However, this is only possible if there is no doubt that the loss was actually suffered.
- Obligation to produce evidence
The injured party may request the court to order the respondent or a third party to produce evidence in its possession to be used in the proceedings.
The court would issue and order serving as enforcement title against the entity requested to produce evidence. In case of delay in performing that obligation, the court is entitled to impose a fine. The court may also order disclosure of the evidence from the files of antitrust authorities.
At the same time, the law introduced a safeguard protecting trade secrets included in the evidence. The court may order to limit the parties’ access to these materials or to establish a strict rules on access and use of them during the proceedings. The disclosure requests made by the parties in bad faith are also subject to a fine.
Infringers with significant market positions will have to factor in the risk of having to pay out compensation to other market players. Preparing a defence strategy in advance would be a good solution in order to limit the risk. The newly introduced provisions on evidence and presumptions act to decrease the disparity between the infringer and the wronged parties.
To conclude, in order to avoid any possible claims for damages from the other parties, every company should conduct diligent and regular analysis of its activity with respect to potential infringements of antitrust laws.