COMPETITION • EUROPEAN LAW • CIVIL SANCTIONS
All persons are entitled to claim reparation for the direct or indirect damage caused by a contract or conduct likely to restrict or distort competition where there is a causal link between the harm and the practice in question, provided that they have not played a significant part in the distortion of competition. However, the Commission, which acts on behalf of the EU interest, has no authority to indemnify the victims of anticompetitive practices who must refer such claims to the national courts.
One of the main obstacles to the development of private enforcement resides in the difficulty of obtaining access to documents in proceedings. Therefore, in order to facilitate the bringing of actions for damages by victims of anticompetitive practices, Directive No 2014/104 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, promotes the access to evidence by victims who, when they sufficiently substantiate the plausibility of their claim for damages, can obtain from the national court an order to the defendant or a third party to disclose relevant evidence in their possession, subject to the principle of proportionality (Art. 5). Article 6 extends this rule to evidence included in the file of a national competition authority or the Commission, but only where no party or third party is reasonably able to provide that evidence. However, in order to protect the interests of public enforcement, leniency statements and settlement submissions are exempt from the right of access. In addition, certain information can only be disclosed after the proceedings before the competition authority have been concluded. According to Article 9, final decisions of a national competition authority finding an infringement constitute conclusive evidence of the existence of the infringement before a court of the same Member State and prima facie evidence of the infringement before a court of another Member State.
Further, although in principle undertakings which have infringed competition law through joint behavior are jointly and severally liable for the harm caused to the injured party (Art. 11(1)), the beneficiaries of immunity will only be liable to their direct or indirect purchasers or providers and to other injured parties, only when full compensation cannot be obtained from the other undertakings involved in the same infringement. In addition, the amount of their contribution may not exceed the amount of damage caused by the infringement to their direct or indirect purchasers or suppliers. The rule of joint and several liability does not apply to small and medium-sized enterprises (SMEs) either, which are liable only to their own direct and indirect purchasers where their market share is less than 5% at any time during the infringement and where the application of the usual rules of joint and several liability would irretrievably jeopardize their economic viability and cause their assets to lose all their value. The exemption will not apply, however, if the SME in question is the instigator of the infringement or is a repeat offender.
Under Article 13 the defendant in an action for damages can invoke as a defense against a claim for damages the fact that the claimant passed on the whole or part of the overcharge resulting from the infringement of competition law with the burden of proving that the overcharge was passed on the defendant. An indirect purchaser may also bring an action for damages but must prove the existence and extent of passing-on of the overcharge to its detriment. The directive facilitates this by establishing a presumption that the overcharge has been passed on where the indirect purchaser has shown that i) the defendant has committed an infringement of competition law; ii) the infringement of competition law has resulted in an overcharge for the direct purchaser of the defendant; and iii) the indirect purchaser has purchased the goods or services that were the object of the infringement of competition law. To avoid overcompensation for the same damage which could result from the introduction of a barrage of claims from victims located at different levels of the supply chain, the courts will have to take into account the judgments already rendered. Furthermore, Article 17 authorizes national courts to estimate the amount of harm, if necessary with the assistance of a national competition authority, where it is established that a claimant suffered harm but it is practically impossible or excessively difficult to quantify the harm suffered on the basis of the evidence available with the assistance of a national competition authority where necessary. Clear limitation period rules are established, so that parties have sufficient time to bring an action. From the moment a victim is in a position to discover that he or she suffered harm from an infringement, that victim should have a period of at least five years to bring a claim. This period will be suspended if a competition authority starts proceedings. Lastly, the directive favors consensual dispute resolution. Article 18 provides that the limitation period for bringing an action for damages is suspended for the duration of any out-of-court resolution for those participating or having participated in the dispute resolution process. Such procedures may be regarded as a mitigating factor by the competition authority subsequently reviewing the case.
In the case of a jurisdiction clause, the Court of Justice distinguishes between whether the damage alleged by the plaintiff in the action for damages results from an agreement or from an abuse of a dominant position. The clause is held to be enforceable against the party bringing the action only insofar as its application arises from the legal relationship in connection with which the agreement was entered into. While the anticompetitive conduct covered in Article 101 TFEU is in principle not directly related to the contractual relationship between a cartel member and a third-party which is affected by the cartel, the conduct referred to in Article 102 TFEU can materialize in the contractual relations that an undertaking in a dominant position enters into with the plaintiff.
Consequently, when the harm for which damages are sought arises from a cartel, the jurisdiction clause is only enforceable if it refers to disputes relating to the liability incurred as a result of an infringement of competition law, whereas this condition is not required in the case of an abuse of a dominant position. Where the clause is not applicable, the victim of the cartel may bring his action for damages against the participants in the infringement either before the court of the place where the agreement or a particular arrangement underpinning the agreement was concluded, as the place where the causal event occurred, or before the court of the place of its own registered office, as the place where the damage materialized.
In matters of predatory pricing, the place where the harmful event occurred may be understood to mean the place in which those prices were offered and applied.
