With a slight delay and little publicity, the EU Directive of 26 November 2014 on damages actions has finally been implemented. The Act of 21 April 2017 on claims for damages caused by competition law infringements recently entered into force. It aims to improve enforcement by facilitating private claims based on infringements.<\/p>\n
Private enforcement has long been seen in Europe as essential to compliance. Authorities such as UOKiK have limited resources and must select cases and promote awareness. Detection remains relatively low: harmed businesses have insufficient motivation to report when public proceedings offer no compensation.<\/p>\n
Damages actions independent of an infringement decision have long been possible, yet cases remain rare. Businesses do not believe compensation can effectively be obtained.<\/p>\n
We should therefore examine the new tools and whether they will significantly increase litigation. What practical opportunities does the Act give victims?<\/p>\n
An indirect purchaser of products or services whose price was affected by an infringement benefits from a presumption that the overcharge was passed on. It need not prove that the direct purchaser, such as a distributor buying from a cartel member, transferred the increase. It must show that the cartel raised the direct purchaser\u2019s price above normal competitive levels. An infringer cannot use this presumption against a direct purchaser: it must prove any passing-on defence.<\/p>\n
The limitation period is five years and does not begin while the infringement continues. For a long-lasting cartel, a victim may potentially claim for the entire period if it acts within five years of cessation. Limitation is also suspended while UOKiK, the Commission or another EU competition authority investigates the infringement. In practice, the effective period is substantially extended.<\/p>\n
A claimant may sue before a court already hearing a case concerning the same infringement. Courts hearing related cases may also ask others to transfer them for joint determination. The legislature recognises that concentration supports efficient handling of complex disputes and consistent judgments.<\/p>\n
The Act introduces disclosure: on a party\u2019s application, the court may require a party, third person or competition authority to supply evidence closely connected with the proceedings and solely for their purposes. It must first assess proportionality, balancing benefits and risks. Unlike previous rules, the disclosure order is an enforcement title against the obliged person and may be appealed.<\/p>\n
The legislature recognises quantification and proof as major difficulties. Competition authorities may assist the court using their evidence. Courts may expressly consider Commission guidance on quantifying harm from EU competition infringements.<\/p>\n
Courts can be expected routinely to refer to these documents, at least when defining expert assignments.<\/p>\n
Why, then, is a breakthrough unlikely?<\/p>\n
The greatest obstacles are courts\u2019 lack of preparation. Expertise is concentrated in UOKiK and the Court of Competition and Consumer Protection. Competition law is specialised, surrounded by administrative decision-making practice, and requires economics. Statutory wording alone rarely suffices for correct application, posing a serious challenge to ordinary courts.<\/p>\n
Economic factors also complicate interpretation. Determining whether an agreement restricts competition may require analysing commercial effects, defining the relevant market and constructing the counterfactual competitive situation without the agreement. These lie at the boundary between judicial responsibility and specialist expert knowledge. Courts will usually seek expert assistance, but defining a proper assignment itself requires substantive understanding. Otherwise opinions may be defective, exceed specialist matters or be insufficient.<\/p>\n
Courts also tend mechanically to transfer expert conclusions into judgments. Competition damages cases require judicial engagement and cooperation with experts. These factors may confine most claims to follow-on cases after UOKiK or Commission decisions, seriously limiting private enforcement\u2019s purpose.<\/p>\n
Quantification presents the same problem. Although Commission guidance is available, courts applying it independently is hard to imagine. Experts will use it, but courts must assess opinions for coherence, logic, consistency with evidence, damages case law and the guidance. This requires familiarity with Commission documents and active dialogue. For an ordinary commercial court without competition specialisation, this may prove practically impossible, causing lengthy proceedings or incomprehensible or incorrect judgments.<\/p>\n","protected":false},"excerpt":{"rendered":"
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