Abstract
The purpose of the Polish Act on Claims for Damages for Remedying the Damage Caused by Infringements of Competition Law, based on and implementing EU law – the Damages Directive, was to enable undertakings to effectively use private enforcement of their damages claims from competition law offenders. Infringement of competition law is classified as a tort according to the said Act on Claims. Therefore, the Act on Claims refers to tort liability rules. The conditions of classic tort liability in domestic law do not have exactly the same dogmatic meaning and scope as the conditions of public or private liability for the infringements of domestic and EU competition law. In practice, their application by national courts may rise many questions regarding conformity between domestic and EU law. This paper aims to analyse one of the key conditions of tort liability, that is, the fault of both the undertaking – the offenders, as well as the fault of their governing bodies and officers. If one were to understand the notion of fault within the limits laid down by civil law, and follow the literal wording of the Polish Civil Code’s provisions referring to the fault condition, the efficiency of private enforcement of damage claims arising from infringements of competition law would be doubtful. Therefore, the aim of this paper is to provide the readers with such an interpretation of the notion of fault, as a condition of liability of undertakings, that the legislative purpose of the Act on Claims is achieved and that the principles of efficiency and equivalence of the EU law are observed. In order to present a comprehensive picture, this paper will also discuss the case law of the CJEU concerning ‘anti-trust fault’, accompanied by a comparative analysis of the German and French approach to the fault condition as well as United States antitrust laws in the same area.
Highlights
This paper will analyse the issue of one of the key conditions of undertakings’ compensatory liability for infringements of competition law, namely fault
If one were to understand the notion of fault within the limits laid down by civil law, and follow the literal wording of the Polish Civil Code’s provisions referring to the fault condition, the efficiency of private enforcement of damage claims arising from infringements of competition law would be doubtful
In addition to the analysis of the legal doctrine, I will refer to the case of interchange fees6, which makes it possible to verify the adopted interpretations in the context of efficiency of private enforcement
Summary
This paper will analyse the issue of one of the key conditions of undertakings’ compensatory liability for infringements of competition law, namely fault. As regards public liability of undertakings for infringing competition law, the Polish Competition Authority (President of Office of Competition and Consumer Protection, UOKiK) has to establish two primary conditions: 1) objective unlawfulness in the form of infringing relevant provisions of the Act on Competition and Consumer Protection (Polish Competition Act; hereinafter, PCA) or relevant EU legislation5, 2) unintentional fault (negligence), at least, on the side of the infringing party. These are the conditions that must be met in order for the Polish Competition Authority to be able to impose a fine. In addition to the analysis of the legal doctrine, I will refer to the case of interchange fees, which makes it possible to verify the adopted interpretations in the context of efficiency of private enforcement (action for damages resulting from an infringement of competition law)
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