“Private enforcement” is a convenient term for pursuing claims arising from competition law infringements through private proceedings, alongside and independently of sanctions imposed by the public authorities enforcing competition rules—the President of UOKiK or the European Commission. It serves two purposes: improving antitrust effectiveness, since infringers fear private claims as well as administrative fines, and enabling those harmed to obtain compensation.
In Poland, these claims are governed by the Act of 21 April 2017 on claims for damages caused by competition law infringements (the Claims Act), implementing Directive 2014/104/EU of 26 November 2014 (the Directive), and the Civil Code’s tort liability rules.
Who can claim compensation, from whom and when?
Essentially anyone whose economic interests were harmed by an anticompetitive practice may claim: businesses, non-business entities and consumers, including those affected only indirectly. An example is a consumer buying from a retailer that bought from a wholesaler at a price inflated by a wholesale cartel.
Market participants infringing competition rules may be liable. The infringement may take either of two forms under the Competition and Consumer Protection Act of 16 February 2007 (the Competition Act) and the Treaty on the Functioning of the European Union (TFEU):
- An anticompetitive agreement with other market participants whose object or effect restricts competition: market sharing, where A and B make substitute goods and each sells only in an agreed territory; restricting third-party market access, where A agrees to exclude B’s competitors from a market monopolised by A; or fixing prices or other sale conditions, where A and B agree not to sell below an agreed price (Article 6 of the Competition Act and Article 101 TFEU).
- Abuse of a dominant position: excessive prices, where A controls most production and substantially raises prices despite low costs without alternatives; deliberately restricting output to increase demand and price artificially; or tying, where dominant seller A sells product X only together with unrelated product Y (Article 9 of the Competition Act and Article 102 TFEU).
CJEU case law indicates that a subsidiary or acquiring company, for example, may also be liable alongside the direct infringer.
Subject to the Claims Act’s limitations for small and medium-sized undertakings and recipients of full immunity under leniency programmes, infringers are jointly and severally liable.
Invalidity of an act infringing competition law
Under the Competition Act and TFEU, acts infringing the prohibition on anticompetitive agreements or abuse of dominance are void. Private enforcement therefore includes establishing invalidity as well as damages. This may take the form of an action declaring a contract or clause invalid, recovering payments made under it, or a defence of invalidity where an infringer seeks damages for breach of a provision itself contrary to competition law.
In practice, a party to the act may seek invalidity or raise it as a defence. Another person with a legal interest in a declaration may also bring an appropriate action.
Private enforcement and merger control
Concentrations—mergers, acquisitions of control, joint ventures and similar transactions—generally fall outside private enforcement, regardless of whether UOKiK or the Commission reviews them. Market participants are generally not entitled to bring claims simply because others implement a concentration.
This principle was significantly limited by Towercast, judgment of 16 March 2023, C-449/21. It opened retrospective review by national competition authorities under Article 102 TFEU, using national procedures, of concentrations not notifiable to UOKiK or the Commission because turnover thresholds were not met. Merely strengthening an undertaking’s position is insufficient: the authority must also show that the resulting degree of dominance substantially impeded competition. Concentrations that obtained legally required clearances are not exposed to challenge under this judgment.
Pursuing claims
No prior competition authority decision is required
A prior Commission or UOKiK infringement decision is unnecessary for damages or invalidity claims. The infringement can be proved before the court hearing the claim. If established by a final decision, however, that decision binds the court.
Jurisdiction
Regional courts hear competition damages cases, specifically the court where the harmful event occurred: where the perpetrator acted or the effects arose. Article 12 of the Claims Act gives an alternative: the claimant may sue before a court already hearing damages proceedings for the same infringement. This also applies to non-pecuniary claims pursued alongside the principal claim. CJEU case law allows different entities to be liable if they belong to one economic unit, expanding potential jurisdictions to those applicable to its constituent entities. The injured party thus has several options and may choose the most suitable court.
In Sumal, C-882/19, the Court held that a victim may claim not only against the parent company, the actual infringer, but also its subsidiary. The claimant must show that both formed one group implementing a coordinated economic policy at the time of infringement. Similar findings appeared in the 2019 Skanska judgment, C-724/17, concerning cartel members subsequently acquired by other undertakings. The Court ultimately held that claims could be pursued against both the acquired and acquiring companies.
