21st Mar 2017
An important bill entitled “Actions for Damages for Infringements of the Competition Law of 2017” is currently pending before the Parliamentary Committee on Energy, Commerce, Industry and Tourism. The said bill aims to transpose the provisions of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (“Competition Damages Directive”) into national law. The key provisions of the pending bill are as follows:
Firstly, the pending bill provides for the entitlement of any natural or legal person that has suffered damage due to an infringement of Articles 101 or 102 TFEU or sections 3 or 6 of the Protection of Competition Law of 2008 to claim full restitutionary damages for the said damage, including a right to damages for the positive damage, loss of profits and payment of interest.
Secondly, the bill also foresees for the right of national courts to order full disclosure of all relevant evidence by the defendant, including confidential information, but on the basis of the principle of proportionality in relation to the damage that disclosure may cause to the disclosing entity, as well as protection of legal privilege. These legislative provisions seem to be, largely, the statutory codification of already pre-existing common law principles on court disclosure orders.
Similarly, national courts may request disclosure of the administrative file, again on the basis of proportionality, only after the Commission for the Protection of Competition (the “CPC”) or a national competition authority of another Member-State has completed its procedures, in relation to information collected by a natural or legal person specifically for the procedure before the CPC or a national competition authority of another Member-State, or information collected by the CPC or another national competition authority and sent to the parties during the procedure before them, or withdrawn settlement submissions. However, a national court may not request of a party or a third party to disclose leniency statements or settlement submissions.
Thirdly, pursuant to the pending bill, national courts may impose effective, proportionate and prohibitive sanctions on parties, third parties or their legal representatives in case of omission or refusal to comply with a disclosure order, or of destruction of relevant evidence, or omission or refusal to comply with obligations to protect confidential information under a national court order, or infringement of the foreseen restrictions on the use of such evidence.
Pursuant to the pending bill, a final decision of the CPC or a court of revisionary jurisdiction is considered as irrefutable evidence that a breach of competition law for the purposes of an action for damages before national courts has taken place. However, a final decision of a national competition authority or a court of revisionary jurisdiction of another member-state, shall be assessed together with any other evidence adduced by the parties.
The bill also foresees a limitation period of at least five years from the date that the infringement of competition law is ceased, provided that the plaintiff knows or should have reasonably known that the specific conduct constitutes a breach of competition law which caused them damage and also knowing the identity of the infringer. There is also a provision on suspension of the limitation period under certain conditions.
In actions for damages under the said bill, joint liability of infringing undertakings is foreseen, with specific derogations for small- to medium-sized enterprises.
The bill also foresees that in order to ensure the full effectiveness of the right to full compensation, compensation of harm can be claimed by anyone who suffered it, irrespective of whether they are direct or indirect purchasers from an infringer, and that compensation of harm exceeding that caused by the infringement of competition law to the claimant, as well as the absence of liability of the infringer, are avoided.
It is provided by the bill that there is a rebuttable presumption that infringements of competition law cause damage, but it may be rebutted by the alleged infringer.
The bill also adds that quantification shall be a matter of national procedures, but the assistance of the CPC or a national competition authority of another Member-State may be requested.
Finally, there are certain provisions in the bill on alternative dispute resolution in such actions.
It must be noted, of course, that the bill is still pending and it may, consequently, be subject to changes before it reaches the Plenary of the House of Representatives.