Proving the amount of loss is among the hardest tasks for a tort claimant. This is even more true under the Act of 21 April 2017 on competition damages claims (the Claims Act). These torts have consequences in a complex, changing economy shaped by many factors, and a special regime modifies ordinary civil and procedural rules. In this first of two parts, I examine compensable losses, the burden of quantification and procedural tools. In part II, Łukasz Doktór discusses economic methods for calculating—or estimating—these losses.
What harm?
The Act’s general reference to competition infringements is precisely defined: breaches of specified TFEU and Polish Competition and Consumer Protection Act prohibitions on anticompetitive agreements, including price-fixing, output restrictions and market sharing, broadly cartels, and abuse of dominance. Losses from those practices fall within the Act.
It does not fundamentally change compensable forms under the Civil Code. Victims may seek actual loss, meaning a reduction in assets, and lost profit, meaning an increase that would have occurred without infringement.
It expressly identifies a typical actual loss: the “overcharge”, the difference between the price paid and the price absent infringement. Direct customers of infringers and indirect purchasers downstream can suffer it. Indirect purchasers include buyers not only of the affected product but also derived products.
Multiple trading levels make “passing on” important: direct purchasers transfer all or part of inflated costs to their own business or consumer customers, usually through price rises. If sawmills agree inflated board prices, furniture manufacturers may, and probably will, pass higher costs to furniture buyers.
The Act presumes passing on where infringement overcharged direct purchasers and an indirect purchaser bought affected or derived goods or services. Only the indirect purchaser may invoke this claimant-protective presumption. A furniture buyer suing a cartel sawmill need not prove that the manufacturer passed on the board overcharge; the sawmill must disprove it. Conversely, if the manufacturer sues, the sawmill may argue that 100% was passed on and no actual loss remains, but must prove that itself. The presumption was not designed to help infringers escape.
It does not determine how much was passed on: 100%, 50%, 20% or 5%. Market structure and direct-purchaser margins matter. Highly competitive, low-margin markets may pass on more, even 100%, whereas less competitive firms may absorb more. No universal statutory rate was adopted. Indirect claimants must therefore still prove the amount transferred, which determines their loss and recoverable damages.
Although overcharges alone are expressly named, other losses arise. Agreements and dominance abuse can obstruct market access, reducing or eliminating revenue. A business may claim lost profits from contracts it could not secure or exclusion from the market.
Who proves the amount?
The victim. The Act presumes harm (Article 7) and fault (Article 3), but not quantum. Amount remains essential. Failure to establish it means no compensation even where the defendant cannot rebut harm.
Quantification: procedure
Estimation is difficult; exact calculation is objectively impossible because full actual and counterfactual market data do not exist. Most cases therefore require expert evidence under ordinary civil rules. The claimant should request it, since court-initiated evidence is limited.
Judicial activity should distinguish these cases. Estimation requires interaction between court, parties and expert. Judges need basic economics to understand and verify reports. Before drafting, they should discuss required data, the most suitable method and preliminary cost, especially where method changes cost significantly. Parties should be heard too. The court cannot replace specialist assessments but needs enough knowledge to test assertions and collaborate actively. It must assess reliability, inevitable assumptions and party objections.
The Act permits reliance on Commission guidance and requests for assistance from UOKiK or other Member State authorities where their evidence allows. Such requests are not binding, reducing practical importance; cartel authorities may also lack data on a particular claimant’s loss.
If efforts remain inconclusive, Article 322 of the Code of Civil Procedure permits judicial estimation. Where precise proof is impossible, excessively difficult or obviously pointless, the court may award an appropriate sum based on all circumstances.
This does not relieve claimant initiative. A specific amount must appear in the claim; only then can the court assess proof difficulties. Asking merely for whatever sum the court considers appropriate is inadmissible. Liability’s other elements—infringement, harm and causation—must be established, assisted by statutory presumptions. The claimant must also attempt quantification through documents and especially expert evidence. Disclosure applications can obtain material from defendants, third persons or authorities. Simply relying in advance on discretion, offering no evidence and explaining no obstacles, results in dismissal as unproved.
Relevant obstacles include ignorance of quantum-related facts, nonexistent evidence or ignorance of its existence. Article 322 should also apply where exact calculation is possible but cost and effort are disproportionate. Econometrics may be more precise but data-intensive and labour-intensive, unjustified by claim value or achievable precision. Rational approximation is then appropriate, as Supreme Court case law accepts.
