Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Third parties who consider that they have suffered a loss as a result of unlawful agreements or conduct may bring a claim for damages in the courts. According to Section 60 of the 1998 Act, the UK courts are required to handle cases so as to ensure consistency with EU law. Section 60 expressly refers to the decisions of the European Court and of the European Commission as to the civil liability of …

Damages

Third parties who consider that they have suffered a loss as a result of unlawful agreements or conduct may bring a claim for damages in the courts. According to Section 60 of the 1998 Act, the UK courts are required to handle cases so as to ensure consistency with EU law. Section 60 expressly refers to the decisions of the European Court and of the European Commission as to the civil liability of an undertaking for harm caused by infringements of EU law. The 2002 Act also enabled claims for damages to be brought before the CAT where a breach of competition law has already been established. Damages claims may be available to persons who have suffered loss or damage as a result of certain types of competition law infringement. Claims may be made where either the CMA or the European Commission has decided that there has been a breach of the cartel prohibition or of the abuse of a dominant position prohibition. Claims may also be made where the CAT has itself established a breach of one of these prohibitions as a result of an appeal of a decision of the CMA. Those follow-on actions may be brought before the CAT, or the High Court. Finally, claims may be brought directly by the person who has suffered a loss caused by an infringement of the prohibitions or by bodies specified by the SoS who may bring representative actions on behalf of consumers. In the latter case, damages will be awarded directly to the represented consumers. 

On 8 March 2017 the Claims in respect of Loss or Damage arising from Competition Infringements Regulations 2017, finally transposed into national law EU Directive 2014/104 on damages actions. As UK law has largely inspired the Directive, changes brought to national legislation are less significant than in other Member States. The Regulation states that for the purposes of competition proceedings, it is to be presumed, unless the contrary is proved, that a cartel causes loss or damage. Compensation may, as previously, be sought before a court or the Competition Appeal Tribunal, but they may not award exemplary damages. A rebuttable presumption that the overcharge resulting from the infringement is established to the benefit of any indirect purchaser who proves i) that the defendant infringed competition law, ii) that as a result of the infringement, there was an overcharge when a person acquired a product or service directly from the defendant, and iii) that she/he subsequently acquired the aforementioned product or service or a product or service derived from or containing the aforementioned product or service. Similar rules apply to indirect suppliers. The passing-on defense is admissible where the defendant, who bears the burden of proof, establishes that the claimant passed on the overcharge or underpayment, and the extent to which the claimant did so. National rules already provided for the joint and several liability of all the undertakings having participated in the infringement. The Regulation however provides that special rules apply to SMEs and immunity recipients which, under certain conditions, may only be liable vis-à-vis their direct or indirect purchasers or suppliers. The Regulation sets a limitation period for bringing competition proceedings of six years (UK except Scotland), and a prescriptive period of five years (Scotland). Both start running the day on which the infringement of competition law that is the subject of the claim ceases, and the claimant’s day of knowledge i) of the infringer’s behavior, ii) that the behavior constitutes an infringement of competition law, iii) that the claimant has suffered loss or damage arising from that infringement, and iv)of  the identity of the infringer. Furthermore, where a competition authority investigates an infringement of competition law, the period of the investigation is not to be counted when calculating whether the limitation or prescriptive period for a competition claim in respect of loss or damage arising from the infringement has expired. Finally, the Regulation provides that for the purposes of competition proceedings, a court or the Competition Appeal Tribunal must not make a disclosure order in respect of a settlement submission which has not been withdrawn, or a cartel leniency statement (whether or not it has been withdrawn). A disclosure order may also not be made in respect of a competition authority’s investigation materials before the day on which the competition authority closes the investigation to which those materials relate. A disclosure order may not be addressed to a competition authority in respect of documents or information included its file unless the court or the Competition Appeal Tribunal is satisfied that no-one else is reasonably able to provide the documents or information. The use as evidence of documents whose disclosure cannot be ordered is prohibited.

On 12 June 2013, the Department for Business Innovation and Skills has published a Draft Consumer Rights Bill, part 3 of which introduces the possibility of launching collective actions limited to competition claims, functioning either under an opt-in or an opt-out basis (Section 47B of the Competition Act 1998). The Consumer Rights Bill, passed on 26 March 2015, received Royal Assent and entered into force on 1 October 2015. The Consumer Rights Act amended Section 47A of the Competition Act 1998 to enable persons who have suffered loss or damage in respect of an infringement of competition rules to make a claim for damages before the Competition Appeal Tribunal. Under Section 47B as amended, collective proceedings may be brought before the Tribunal combining two or more claims to which section 47A applies. Collective proceedings may be continued only if the Tribunal makes a collective proceedings order. This requires, inter alia, that the concerned claims raise the same, similar or related issues of fact or law and are suitable to be brought in collective proceedings. The collective proceedings order must, inter alia, include a description of a class of persons whose claims are eligible for inclusion in the proceedings, and specify whether the proceedings are opt-in collective proceedings or opt-out collective proceedings. According to this section, opt-out proceedings are only available to UK residents and non-UK claimants will only be able to join opt-in proceedings. Where the Tribunal gives a judgment or makes an order in collective proceedings, the judgment or order is binding on all represented persons, except as otherwise specified. However, the right to make a claim in collective proceedings does not affect the right to bring any other proceedings in respect of the claim. Under new Section 47C the Tribunal may not award exemplary damages in collective proceedings. Damages may be awarded without assessing the amount recoverable in respect of the claim of each represented person. In the case of opt-out proceedings, any damages not claimed by the represented persons within a specified period will be paid to a charity. Under new Section 49A, the Competition Appeal Tribunal may make an order approving a proposed collective settlement where a collective proceedings order has been made in respect of the claims, the Tribunal has specified that the proceedings are opt-out collective proceedings and the Tribunal is satisfied that its terms are just and reasonable. A collective settlement approved by the Tribunal is binding on all persons falling within the class of persons described in the collective proceedings order who were domiciled in the United Kingdom at the time specified for the purposes of determining domicile in relation to the collective proceedings and did not opt out of those proceedings, or opted in to the collective proceedings. Finally, Section 58 A specifies that the Tribunal examining claims brought under Sections 47A and 47B is bound by any final infringement decision. 

Global Competition Law

1403. Damages

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Les notions juridiques connexes

1403. Damages

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise