Unfair competition claim dismissed: differentiated service charges in shopping centres

A regional court has dismissed in full a tenant's claim against our client – the owner of a shopping centre in northern Poland – for damages for an alleged act of unfair competition consisting in the unjustified differentiation of service charge rules between anchor tenants and other tenants.

Judgment was handed down in June 2026.

The decision departs from the approach previously taken by the courts in cases of this kind and may prove significant for the industry. Notably, the judgment was delivered by the same division of the court which, in an earlier similar dispute discussed in the trade press, had taken the opposite view.

The court's written reasons are expected in the coming weeks. Once they are available, we will report in more detail on the considerations that led the court to rule in the landlord's favour.

The judgment is not final. It will certainly not end the market debate around service charges and the differentiation of cost allocation rules – but it may mark an important turning point in how these issues are assessed by the courts.

Unfair competition claims as an abuse of rights

Alongside the substantive defence of the cost allocation rules applied at the centre, we argued, among other things, that the allegation that the landlord had committed an act of unfair competition was in essence an attempt to re-set, after the event, the level of payments due under the lease – and thereby to alter the agreed distribution of profits – which finds no basis or justification in the Polish Unfair Competition Act. Such conduct may be held contrary not only to the socio-economic purpose of the remedies provided for in that Act, but also to a fundamental principle of social coexistence (the Polish law counterpart of good faith): the duty of loyalty in contractual relations and of acting in line with the other party's legitimate expectations.

Where a tenant has traded from the leased premises for many years – and, in particular, has renewed the lease and made no attempt to terminate it before the end of its term – the landlord is entitled to assume that the terms of the lease reflected a consensus that was not merely formal but also substantive, grounded in the economic calculations of both parties. Seeking to challenge that consensus after the lease has expired may be regarded as a breach of the landlord's legitimate expectations – contrary not only to the principles of social coexistence (the duty of loyalty), but also to the socio-economic purpose of the remedies available under the Unfair Competition Act.

Calculating damage in service charge differentiation cases

A further central issue in the proceedings was the dispute over the correct method of calculating the tenant's damage on the hypothetical assumption that an act of unfair competition had in fact occurred. We argued that it is fundamentally flawed to base a differential (but-for) calculation of loss on the arbitrary assumption that service charges would have been allocated solely pro rata to the floor area of the leased premises.

Earlier case law in similar disputes

Contrary to claims sometimes repeated in industry publications, the question whether the differentiation of service charge rules is (or is not) permissible has never been ruled upon by the Polish Supreme Court. In the 2022 judgment cited in this context, the Supreme Court did not interpret Article 15(1)(3) of the Unfair Competition Act (or any other provision of that Act) as to whether the differentiated allocation of operating costs may properly be classified as an act of unfair competition, because that classification was not raised in any of the grounds of the cassation appeal. Ruling within the limits of those grounds (Article 398(13) § 1 of the Polish Code of Civil Procedure), the Supreme Court was bound by the lower courts' finding that, on the specific facts of that case, the differentiation amounted to an act of unfair competition.

As regards earlier judgments of the ordinary courts in similar cases, a significant issue is their potential internal inconsistency. Those judgments declared that differentiating service charge rules between groups of tenants is permissible in principle – while at the same time adopting, for the purpose of calculating the tenant's alleged loss, a counterfactual in which every tenant bears service charges strictly in proportion to the floor area of its premises. This may lead to inflated damages – and potentially to awards being made where, in reality, no loss was suffered at all. If differentiation is permissible in principle, then the benchmark for calculating loss should not be an arbitrarily adopted floor-area allocation scenario in which no differentiation occurs at all.