Although the Act on Private Enforcement of Competition Law has been in force in Poland for almost six years, cases of this kind are only now gaining momentum.
The Polish competition authority recently, somewhat unexpectedly, made a statement that may encourage victims to take legal action.
Under article 31d of the Competition and Consumer Protection Act, the President of UOKiK will submit a standpoint material to a case concerning competition or consumer protection to a court if the President of UOKiK considers this to be in the public interest. Thus the authority has the power to submit standpoints in its area of expertise during a pending litigation case. To date, UOKiK has applied this provision almost exclusively in disputes concerning financial instruments, and specifically CHF loans. Several hundred standpoints of this nature can be found on UOKiK’s website, all in the consumer protection section.
However, UOKiK has now signaled that a standpoint material to a case can also be drawn up when claims are being raised for breach of competition law. The attorneys acting for the parties may submit a request for UOKiK to draw up a standpoint, identifying the issues that in their view the authority needs to examine. A standpoint of this kind may be invaluable to a court, especially in stand-alone cases, which relate to matters in which no decision confirming misconduct has been issued before. On the other hand, without conducting an investigation, will UOKiK be willing to state unequivocally whether a particular practice breaches competition law? This is quite unlikely. It is more likely that it will advise on the complex issues of competition law and its economic aspects. Moreover, only future practice will show the extent to which UOKiK is willing to scrutinize voluminous court files. It is also known, incidentally, that UOKiK has limited resources as regards personnel, and drawing up a standpoint that is truly beneficial in a case takes time. For the reasons given above, the authority’s statement should not be considered a guarantee of success in a private enforcement case. All the same, this option should be borne in mind.
Author: Katarzyna Menszig-Wiese