The age of antitrust litigation in Europe has arrived

The year 2016 will feature an important overhaul of antitrust actions cross Europe. Each EU Member State has to implement EU Directive 2014/104/EU on antitrust damages action until 27 December 2016.

The changes imposed by the Directive are substantial. The Directive introduces private enforcement as an effective method of fighting unfair competition. Private enforcement will be allowed independently from any regulatory proceedings, which means that antitrust claims can be launched before, during, or after the relevant regulatory authority (such as the UrządOchronyKonkurencji I Konsumentów in Poland) has tried the case. 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. Under the Directive, the injured party has the possibility to claim full compensation, that is both damnumemergens and lucrumcessans. 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.

What is more, the court now has the power to assess the amount of the loss, if it cannot be evaluated on the basis of available evidence. However, this is only possible if there is no doubt that the loss was actually suffered. The court can turn to the regulatory authority for assistance in assessing the loss.

The Directive also introduces a rebuttable presumption that cartels have caused harm. Previously, the injured party had to prove on his own the above-mentioned circumstance.

The Directive reaffirms the joint and several liability of co-infringers. This means that each of the breaching companies has a duty to fully compensate the loss, and the injured party can claim full compensation from each of the breaching companies until his claim is fully satisfied.

The above mentioned solutions are meant to achieve the aim of the Directive, which is to facilitate the effectiveness of antitrust claims, discourage potential infringers, and to improve the social trust in regulatory authorities.

However, the effectiveness of the new Directive depends on how it is nationally implemented in various Member States. Some of them have already implemented the Directive.

Seeking antitrust claims in Poland is not a widespread practice at the moment, which provokes some entities on the market to gain advantage over their competitors by utilizing acts of unfair competition. Private enforcement in the Polish legal system is qualified as an ordinary compensation claim. The claimants thus often have problems in the sphere of collecting all relevant evidence as it is often hard to prove that the monopolist’s actions are wrongful and culpable.

Poland has just taken steps to implement the Directive. On 17 March 2016 draft legislation guidelines as to the implementation were published. The new statute on seeking antitrust claims is supposed to be enacted in the first quarter of 2016. Currently the guidelines are being assessed by the Government Legislation Centre.