Poland: Private Enforcement – A New Institution For Combating Infringements Of Competition Law

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.