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

Prior to Directive 2014/104/EU of 26 November 2014 (called the « Damages Directive »), the Competition Act of 2011 did not contain provisions specific to the compensation of damages caused by anticompetitive practices. Therefore, actions for damages relied on the common provisions of the Civil Code governing civil liability. The Damages Directive was implemented in Luxembourg law by the Law of 5 D …

Enforcement by ordinary courts

Proceedings may be initiated either by the Council ex officio or at the request of any natural or legal person showing a legitimate interest in such an application, or at the request of the Minister (Article 10). The investigators designated by the Council are civil servants entrusted by the Council to carry out all inspections necessary for the establishment of the infringements at issue by the undertakings or association of undertakings (searches and seizures etc.).

The Council may require that the undertakings and association(s) of undertakings disclose all necessary information (Article 14) and if need be, impose a penalty up to 5% of the average daily turnover to compell compliance (Article 22). In addition, it is empowered to collect statements from natural and legal persons, allowing the presence of a lawyer (Article 15) and appoint experts on targeted missions (Article 18).

Complaints and investigations

When the councilor appointed to lead the investigation finds facts likely to fall within the scope of competence of the Competition Council, he sends a registered letter with acknowledgment of receipt to the undertakings concerned stating the objections raised against them (Article 25). The letter states the period granted to the recipients to respond, which must be at least one month.

Before enjoining remedies or imposing fines to any undertaking found to infringe substantial provisions of the Competition Act, the Competition Council must grant the undertaking the opportunity to be heard during a hearing taking place in not less than two months following the notification of the objections. (Article 26).

If the Council intends to adopt a decision ordering the infringing behavior to cease and where the undertakings concerned offer commitments able to address the competition concerns of the designated councilor, the Council may decide to discontinue proceedings and to make those commitments binding on the undertakings. The proceedings may however be re-opened subsequently if the undertakings fail to comply with their commitments or if the decision is based on inaccurate, incomplete or misleading information provided by the parties (Article 13).

Proceedings before the Competition Council

Under Article 12, interim measures can be ordered by the President of the Council after hearing the parties involved, when the practice complained of affects seriously and irreparably either the complainant or the economic public order. Such measures must be proportionate to the situation and strictly limited to what is necessary to address the emergency and may be ordered, upon the President of the Council's appreciation, along with a penalty not exceeding 5% of the average daily turnover.

Interim relief

Prior to Directive 2014/104/EU of 26 November 2014 (called the « Damages Directive »), the Competition Act of 2011 did not contain provisions specific to the compensation of damages caused by anticompetitive practices. Therefore, actions for damages relied on the common provisions of the Civil Code governing civil liability. The Damages Directive was implemented in Luxembourg law by the Law of 5 December 2016 and applies to actions introduced before national courts after 11 December 2016 included.

Under Article 2 of the Law, a rebuttable presumption exists that cartel infringements cause harm. The courts have a duty to grant a proportionate access to evidence. In this respect, the interest of undertakings in avoiding damages actions is not deemed worthy of protection. However, undertakings may raise their concerns as to the confidentiality of identified documents for the court to protect by specific measures (Article 3).

Article 4 states that access to the Competition Council's file may be granted but certain documents may only be communicated after its proceedings are closed. Conversely, declarations made in the context of leniency applications and settlement proposals may never be communicated. Pursuant to Article 6, a final decision by the Competition Council establishing an infringement of Article 101 or Article 102 TFEU, or Articles 3 or 5 of the Competition Act constitutes undisputable proof of the breach. Similar decisions of competition authorities of other Member States can only be granted the value of prima facie evidence so that they must be corroborated by other elements.

In the case of multiple offenders, Article 7 sets out a principle of joint and several liability, the effects of which are limited under certain conditions for SMEs and leniency recipients. Following Article 8, the passing on defense is admissible, but it is up to the defendant to establish that the overcharge was actually passed on. The limitation period for bringing an action for damages is set at five years from the time at which the violation has ceased and the plaintiff has knowledge of such violation (Article 14).

Global Competition Law

508. Enforcement by ordinary courts

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Les notions juridiques connexes

508. Enforcement by ordinary courts

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