Antitrust Private Enforcement – Case of Poland

This article presents the main difficulties surrounding private enforcement of antitrust law in Poland, currently the key implementation problem in the field of antitrust law. Whereas the basic standards concerning the public pillar of antitrust enforcement have already been established, either in the European Community (EC) or in its Member States, the private pillar of antitrust enforcement has not yet been fully developed. The fact that private enforcement of antitrust law is possible, and in fact equal, to public enforcement is not yet commonly recognized. In response to the European Commission’s White Paper on Damages actions for breach of the EC antitrust rules, private enforcement of antirust law is presently under intense discussion in EC Member States. This article should be considered as one of the contributions to this debate. It presents the main legal framework of private enforcement of antitrust law in Poland. In order to do so, it directly refers to the Polish Act on competition and consumer protection, the Civil Code and the Civil Procedure Code. This article also discusses Polish case law in this area. It aims to assess whether existing Polish legal provisions are, in fact, sufficient to ensure effective private enforcement of Polish as well as EC antitrust law. The article refers to the main proposals of the European Commission’s White Paper. It is concluded that private enforcement of antitrust law is indeed possible in Poland on the basis of currently applicable procedural rules, even if there are no special instruments designed to facilitate it. However, it cannot be expect that in the current legal climate, private parties will eagerly and frequently apply for damages in cases of a breach of Polish antitrust law. Antitrust cases are special in many aspects and, thus, they require specific solutions in procedural terms. This article aims to pinpoint those areas, where the Polish law needs to be changed in order to develop and promote private enforcement of antitrust law in Poland.

Michał Mijal