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ICLG The International Comparative Legal Guide to: Competition Litigation 2018 10th Edition A practical cross-border insight into competition litigation work Published by Global Legal Group, in association with CDR, with contributions from: ACCURA Advokatpartnerselskab INFRALEX Albuquerque & Associados King & Wood Mallesons Arnold Bloch Leibler Luthra & Luthra Law Offices Arthur Cox MinterEllisonRuddWatts Ashurst LLP Müggenburg, Gorches y Peñalosa, S.C. Berkeley Research Group Nagashima Ohno & Tsunematsu Blake, Cassels & Graydon LLP Nedelka Kubáč advokáti bpv Hügel Rechtsanwälte GmbH Nicholas Ngumbi Advocates DALDEWOLF Osborne Clarke Dittmar & Indrenius Pels Rijcken & Droogleever Fortuijn Economic Insight Limited Selçuk Attorneys At Law Fieldfisher - Studio Associato Servizi Professionali Integrati Skadden, Arps, Slate, Meagher & Flom LLP GANADO Advocates Stavropoulos & Partners Law Office Hansberry Tomkiel Stewarts Hausfeld & Co LLP Wilson Sonsini Goodrich & Rosati Haver & Mailänder Rechtsanwälte Partnerschaft mbB Zhong Lun Law Firm
The International Comparative Legal Guide to: Competition Litigation 2018
General Chapters:
1 To Shop or not to Shop?: Jurisdictional Differences Following Implementation of the Damages
Directive – Euan Burrows & Ruth Allen, Ashurst LLP 1
2 Recovering European Cartel Damages in England – A Plaintiff’s Guide – Kenny Henderson & Kate
Pollock, Stewarts 13
Contributing Editor 3 Practicality and Accuracy: A “Blended” Approach to Competition Damages Calculations –
Euan Burrows, Ashurst LLP Dante Quaglione & Daniel Ryan, Berkeley Research Group 20
Account Director
4 Brexit – Scott Campbell & Wessen Jazrawi, Hausfeld & Co LLP 24
Oliver Smith
Sales Support Manager 5 Four Practical Issues to Keep (at Least) One Eye on in 2018 – An Economist’s Perspective –
Toni Hayward James Harvey, Economic Insight Limited 30
Editor
Caroline Collingwood Country Question and Answer Chapters:
Senior Editors 6 Australia Arnold Bloch Leibler: Zaven Mardirossian & Matthew Lees 34
Suzie Levy, Rachel Williams
7 Austria bpv Hügel Rechtsanwälte GmbH: Dr. Florian Neumayr &
Chief Operating Officer
Dr. Astrid Ablasser-Neuhuber 41
Dror Levy
Group Consulting Editor 8 Belgium DALDEWOLF: Thierry Bontinck & Pierre Goffinet 51
Alan Falach
9 Canada Blake, Cassels & Graydon LLP: Robert E. Kwinter & Evangelia Litsa Kriaris 57
Publisher
Rory Smith 10 China Zhong Lun Law Firm: Peng Wu & Yi Xue (Josh) 65
Published by 11 Czech Republic Nedelka Kubáč advokáti: Martin Nedelka & Radovan Kubáč 75
Global Legal Group Ltd.
59 Tanner Street 12 Denmark ACCURA Advokatpartnerselskab: Jesper Fabricius &
London SE1 3PL, UK Laurits Schmidt Christensen 81
Tel: +44 20 7367 0720
13 England & Wales Ashurst LLP: Euan Burrows & Max Strasberg 89
Fax: +44 20 7407 5255
Email: info@glgroup.co.uk 14 European Union Skadden, Arps, Slate, Meagher & Flom LLP: Stéphane Dionnet & Antoni Terra 113
URL: www.glgroup.co.uk
15 Finland Dittmar & Indrenius: Ilkka Leppihalme & Toni Kalliokoski 124
GLG Cover Design
F&F Studio Design 16 France Osborne Clarke SELAS: Alexandre Glatz & Charles Meteaut 131
GLG Cover Image Source
17 Germany Haver & Mailänder Rechtsanwälte Partnerschaft mbB: Prof. Dr. Ulrich Schnelle
iStockphoto
& Dr. Volker Soyez 138
Printed by
Stephens & George 18 Greece Stavropoulos & Partners: Evanthia V. Tsiri & Efthymia N. Armata 145
Print Group
September 2017 19 India Luthra & Luthra Law Offices: Abdullah Hussain & Kanika Chaudhary Nayar 151
Copyright © 2017 20 Ireland Arthur Cox: Richard Ryan & Patrick Horan 157
Global Legal Group Ltd.
21 Italy Fieldfisher – Studio Associato Servizi Professionali Integrati:
All rights reserved
No photocopying Patrick Marco Ferrari 167
22 Japan Nagashima Ohno & Tsunematsu: Eriko Watanabe & Koki Yanagisawa 176
ISBN 978-1-911367-72-7
ISSN 1757-2819 23 Kenya Nicholas Ngumbi Advocates: Nicholas Wambua 184
Strategic Partners
24 Malta GANADO Advocates: Sylvann Aquilina Zahra & Antoine G. Cremona 190
25 Mexico Müggenburg, Gorches y Peñalosa, S.C.: Gabriel Barrera Vallcaneras &
Alfonso Alfaro Rincón Gallardo 200
26 Netherlands Pels Rijcken & Droogleever Fortuijn: Willem Heemskerk &
Erik Pijnacker Hordijk 207
27 New Zealand MinterEllisonRuddWatts: Oliver Meech & Alisaundre van Ammers 213
PEFC Certified
This product is
28 Poland Hansberry Tomkiel: Dorothy Hansberry-Bieguńska &
from sustainably
managed forests and Małgorzata Krasnodębska-Tomkiel 221
controlled sources
PEFC/16-33-254 www.pefc.org 29 Portugal Albuquerque & Associados: António Mendonça Raimundo &
Sónia Gemas Donário 229
Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720
Disclaimer
This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.
Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.
This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified
professional when dealing with specific situations.
WWW.ICLG.COMThe International Comparative Legal Guide to: Competition Litigation 2018
Country Question and Answer Chapters:
30 Russia INFRALEX: Artur Rokhlin & Victor Fadeev 241
31 Slovakia Nedelka Kubáč advokáti: Martin Nedelka & Radovan Kubáč 248
32 Spain King & Wood Mallesons: Ramón García-Gallardo & Coral García Guadix 254
33 Turkey Selçuk Attorneys At Law: Ilmutluhan Selçuk & Şahin Yavuz 267
34 USA Wilson Sonsini Goodrich & Rosati PC: Jeffrey C. Bank & Thu Hoang 273
EDITORIAL
Welcome to the tenth edition of The International Comparative Legal Guide to:
Competition Litigation.
This guide provides corporate counsel and international practitioners with
a comprehensive worldwide legal analysis of the laws and regulations of
competition litigation.
It is divided into two main sections:
Five general chapters. These are designed to provide readers with a
comprehensive overview of key issues affecting competition litigation work,
particularly from the perspective of a multi-jurisdictional transaction.
Country question and answer chapters. These provide a broad overview of
common issues in competition litigation in 29 jurisdictions.
All chapters are written by leading competition litigation lawyers and industry
specialists, and we are extremely grateful for their excellent contributions.
Special thanks are reserved for the contributing editor, Euan Burrows of Ashurst
LLP, for his invaluable assistance.
Global Legal Group hopes that you find this guide practical and interesting.
The International Comparative Legal Guide series is also available online at
www.iclg.com.
Alan Falach LL.M.
Group Consulting Editor
Global Legal Group
Alan.Falach@glgroup.co.ukChapter 20
Ireland Richard Ryan
Arthur Cox Patrick Horan
As regards civil proceedings, sections 14(1) and 14A(1) of
1 General
the Competition Act provide that aggrieved persons and the
Competition and Consumer Protection Commission (the “CCPC”)
1.1 Please identify the scope of claims that may be (or the Commission for Communications Regulation, hereafter
brought in your jurisdiction for breach of competition “ComReg”) respectively have a right of action against:
law. ■ any undertaking which is/was a party to behaviour prohibited
by sections 4 or 5 of the Competition Act or Article 101 or
The Competition Act 2002 as amended (the “Competition Act”) 102 TFEU; and
contains two main prohibitions: ■ any director, manager or other officer of any such undertaking,
■ Prohibition on anti-competitive arrangements between or any person who purported to act in such capacity, who
undertakings: section 4(1) of the Competition Act prohibits authorised or consented to such behaviour.
and renders void all agreements between undertakings, The range of remedies available is set out in Section 14 of the
decisions by associations of undertakings and concerted Competition Act and includes:
practices which have as their object or effect the prevention,
■ declarations;
restriction or distortion of competition in trade in any goods
or services in the State or in any part of the State, including ■ injunctions;
those which: ■ damages (for aggrieved persons but not for the CCPC/
■ fix prices; ComReg);
■ limit or control production or markets; ■ orders requiring a dominant position to be discontinued; and
■ share markets or sources of supply; ■ orders requiring the undertaking to adopt such measures
for the purpose of it ceasing to be in a dominant position or
■ apply dissimilar conditions to equivalent transactions
securing an adjustment of that position, including the sale of
with other trading parties; and
assets.
■ make the conclusion of contracts subject to acceptance
by the other parties of supplementary obligations which As regards criminal proceedings, sections 6 and 7 of the Competition
by their nature or according to commercial usage have no Act make it an offence to breach section 4 or 5 of the Competition
connection with the subject of such contracts (e.g. tying). Act or Article 101 or 102 TFEU. The CCPC investigates alleged
■ Prohibition on abuse of dominance: Section 5 of the breaches of the Competition Act and can either itself bring a
Competition Act prohibits the abuse by one or more summary prosecution before the District Court or, in more serious
undertakings of a dominant position in trade for any goods or cases, refer a case to the Director of Public Prosecutions (the “DPP”)
services in the State or any part of the State. Such abuse may, for prosecution on indictment. Section 8 of the Competition Act sets
in particular, consist in: out the penalties for those found guilty of offences under sections 6
■ directly or indirectly imposing unfair purchase or selling or 7 of the Competition Act.
prices or other unfair trading conditions; The responses below are limited to a consideration of civil aspects
■ limiting production, markets or technical development to of competition litigation.
the prejudice of consumers;
■ applying dissimilar conditions to equivalent transactions
1.2 What is the legal basis for bringing an action for
with other trading parties, thereby placing them at a
breach of competition law?
competitive disadvantage; and
■ making the conclusion of contracts subject to the
Sections 14 and 14A of the Competition Act. Follow-on actions
acceptance by other parties of supplementary obligations
which by their nature or according to commercial usage for damages are also governed by the European Union (Actions
have no connection with the subject of such contracts. for Damages for Infringements of Competition Law) Regulations
2017 (the “Damages Regulations”), which transpose Directive
These prohibitions are broadly similar to, and are modelled on, the
2014/104/EU on Antitrust Damages Actions into Irish national law.
prohibitions contained in Articles 101 and 102 of the Treaty on the
However, the Damages Regulations do not apply to infringements
Functioning of the European Union (“TFEU”).
of competition law that occurred before 27 December 2016.
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■ the appointment of experts to assist the court, particularly in
1.3 Is the legal basis for competition law claims derived relation to economic matters.
from international, national or regional law?
Competition issues may also be raised in cases not entered in the
Competition List. In Ski Apparel Revolution Workwear et al. [2013]
National law: sections 14 and 14A of the Competition Act allow IEHC 289, for instance, which concerned a dispute involving an
for the bringing of claims for breaches of sections 4 or 5 of the Irish distributor of Ski Apparel’s products (clothing) and in which
Competition Act and/or breaches of Articles 101 or 102 TFEU. it was argued that a non-compete was anti-competitive, Judge
Ireland
Laffoy said “application of competition law, both at European and
1.4 Are there specialist courts in your jurisdiction to at national level, is a specialised discipline and, understandably,
which competition law cases are assigned? there is a special Competition Case List in the High Court.
Notwithstanding that, competition law issues find their way into
There is no specialist competition court in Ireland. Civil competition cases listed elsewhere in the High Court”.
cases are heard before the Circuit Court or the High Court. In
general, the Circuit Court has jurisdiction to hear claims having a 1.5 Who has standing to bring an action for breach
monetary value not exceeding €75,000. The High Court has original of competition law and what are the available
jurisdiction to hear virtually all matters irrespective of amount. mechanisms for multiple claimants? For instance, is
However, a statutory instrument, Statutory Instrument 130/2005 there a possibility of collective claims, class actions,
actions by representative bodies or any other form of
The Rules of the Superior Courts (Competition Proceedings) 2005
public interest litigation? If collective claims or class
(“SI 130/2005”), has amended the Rules of the Superior Courts actions are permitted, are these permitted on an “opt-
by introducing a High Court Competition List and providing for in” or “opt-out” basis?
procedures that apply to the Competition List. As a result, a Judge
of the High Court is designated to hear competition law cases and Section 14(1) of the Competition Act provides that “any person who
there are specific procedural rules which apply to cases entered into is aggrieved in consequence of any agreement, decision, concerted
the High Court Competition List. practice or abuse which is prohibited under section 4 or 5, or by
Proceedings that may be entered into the Competition List include: Article 101 or 102 of the Treaty on the Functioning of the European
(a) proceedings in exercise of a right of action conferred by the Union, shall have a right of action under this subsection for relief”.
Competition Act on a person aggrieved in consequence of any “Aggrieved persons” include natural and legal persons.
behaviour prohibited by sections 4 or 5 of the Competition Act; Section 14A (1) of the Competition Act provides a right of action to
(b) proceedings in exercise of a right of action conferred by the the CCPC (or ComReg) in respect of behaviour prohibited by sections
Competition Act on the CCPC/ComReg in respect of any 4 or 5 of the Competition Act or by Articles 101 or 102 TFEU.
behaviour prohibited by sections 4 or 5 of the Competition
Act or by Articles 101 or 102 TFEU; Follow-on actions are facilitated by the Damages Regulations.
Regulation 8 provides that an infringement of competition law
(c) an appeal against the making of a declaration by the CCPC
under section 4(3) of the Competition Act (such declarations found by a final decision of a national competition authority or a
are similar to European Commission block exemption review court is deemed to be irrefutably established for the purposes
regulations); of an action for damages, while the final decision of a competition
(d) an appeal against any determination of the CCPC under authority in another Member State may be presented as at least
Irish merger control rules to either block a transaction or prima facie evidence that an infringement has occurred.
clear it subject to conditions (other than in the case of media Prior to the transposition of Directive 2014/104/EU on Antitrust
mergers); Damages Actions, a provision in the Competition (Amendment) Act
(e) proceedings for judicial review of a decision of the CCPC; 2012 already provided that a finding by an Irish court of a breach
(f) proceedings for an injunction to enforce compliance with of sections 4 or 5 of the Competition Act, or Articles 101 or 102
the terms of a commitment or determination, or of an order TFEU, will be regarded as res judicata (i.e. already adjudicated
made by the Minister for Jobs, Enterprise & Innovation and unnecessary to be considered again) in any subsequent civil
under section 23(4) of the Competition Act (relating to media proceedings. Accordingly, a plaintiff in a follow-on action does
mergers); not have to prove the infringement of competition law occurred and
(g) proceedings seeking the application of Articles 101 or 102 only has to prove causation, loss and the quantum of damages that
TFEU; they are entitled to if successful.
(h) proceedings for relief at common law in respect of a condition There is currently no procedure in Ireland for the taking of class
or covenant in any agreement alleged to be unreasonably in actions seeking damages, as evidenced by the large volume of
restraint of trade; and
individual cases taken in the Irish courts on foot of the European
(i) any other proceedings which concern the application of a Commission’s decision in the Trucks cartel. In practice, parties
provision of the Competition Act, of Regulation (EC) 1/2003 involved in related actions may agree to one action proceeding as a
or of Articles 101, 102, 106, 107 or 108 TFEU.
“pathfinder case” and the other parties (including defendants) may
The procedural rules for the Competition List are intended to agree to be bound by the outcome of the “pathfinder case”, although
expedite competition proceedings and provide for enhanced case there is no obligation on the parties to take such an approach. There
management. Matters covered by those procedural rules include: have been calls for reform to facilitate the taking of collective/
■ pre-trial procedures, including directions hearings, motions related actions in Ireland, including in a report by the Law Reform
and applications, interrogatories and case management; Commission published in 2005. However, there are no imminent
■ the use of pre-trial conferences and questionnaires; proposals to introduce such a system.
■ court books; Representative bodies may bring representative actions on behalf
■ the electronic filing and serving of documents; of their members seeking injunctive or declaratory relief, but not
■ exchange of documents and evidence; and damages.
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decision in the Trucks cartel shows that Ireland continues to be an
1.6 What jurisdictional factors will determine whether a attractive venue for competition litigation generally.
court is entitled to take on a competition law claim?
1.8 Is the judicial process adversarial or inquisitorial?
The jurisdiction of certain types of civil claims involving defendants
who are domiciled in an EU Member State (apart from Denmark)
is governed by Regulation (EU) No 1215/2012 of the European Ireland is a common law jurisdiction and has an adversarial judicial
process.
Ireland
Parliament and of the Council of 12 December 2012 on jurisdiction
and recognition and enforcement of judgments in civil and commercial
matters (recast) (“Brussels Regulation”) (which replaced the previous
2 Interim Remedies
version, Regulation (EU) 44/2001, with effect from 10 January 2015).
In summary, in such cases, a defendant may be sued before an Irish
court if it is domiciled in Ireland. Alternatively, a defendant may 2.1 Are interim remedies available in competition law
be sued in an Irish court if the anti-competitive behaviour, which cases?
is the subject of the complaint, is alleged to have occurred there. A
defendant may also be sued in an Irish court if the relevant damage The range of remedies available before Irish courts is set out in
occurred, or will occur there. If these criteria are met then it is likely Sections 14 and 14A of the Competition Act. They include interim
that the Irish courts will have jurisdiction. In addition, where the measures.
parties have agreed that the courts of Ireland are to have jurisdiction
to settle any disputes arising in connection with a particular legal
2.2 What interim remedies are available and under what
relationship, those courts have jurisdiction, unless the agreement is
conditions will a court grant them?
null and void.
Ireland is a party to the Brussels Convention between EU Member The courts may grant interim relief in respect of private antitrust
States and Denmark, and to the Lugano Convention between EU litigation in certain circumstances. Sections 14(1) and 14A(1) of
Member States and the members of EFTA, Switzerland, Iceland the Competition Act provide for the grant of interim injunctions,
and Norway. Those Conventions apply similar rules which govern interlocutory injunctions and injunctions of definite or indefinite
the jurisdiction of certain civil claims involving defendants in those duration. Interim injunctions can be granted for very limited periods
countries. of time and may be granted on an ex parte basis, while interlocutory
Where the rules of the Brussels Regulation, the Brussels Convention injunctions can last until the full hearing of a case. Applicants are
and the Lugano Convention do not apply, Irish common law required to provide an undertaking to ensure that the defendant will
jurisdictional rules are applicable. In summary, Irish courts can have be properly compensated should they lose their case.
jurisdiction under common law rules in the following situations: The grant of injunctions is at the discretion of the court. An
■ where the defendant has been duly served in Ireland; injunction may be granted by the courts where:
■ where the parties agree to the jurisdiction of the Irish courts; ■ there is a fair question to be tried;
■ where a defendant submits to the jurisdiction of the Irish ■ damages would not be an adequate remedy; and
courts; or
■ the balance of convenience favours the award of the
■ where service outside of Ireland has been performed in injunction.
accordance with Order 11 of the Rules of the Superior Courts.
The types of interim/interlocutory injunction available in Ireland
Order 11 applies to cases where a defendant is not present in Ireland include:
but the case is so closely connected to Ireland or with Irish law
■ prohibitory injunctions restraining a person from carrying out
that there is ample justification for it being tried in Ireland. Under an act;
Order 11, it is necessary to apply for leave of the High Court before
■ mandatory injunctions to require a person to carry out an act;
documents can be served outside the jurisdiction. This ensures that
and
service on defendants outside the jurisdiction is limited to cases
■ quia timet injunctions which are granted to prevent an
where the court is of the view that it has jurisdiction to consider
anticipated breach of legal rights.
the particular dispute. The burden of proof is on the applicant to
establish that it is a proper case for service under Order 11. It is more difficult to secure a mandatory injunction at an
interlocutory stage than a prohibitory injunction. In Lingham v
Civil competition law claims can be brought in Ireland before the
Health Service Executive [2005] IESC 89, [2006] 17 E.L.R. 137,
Circuit Court or the High Court. In general, the Circuit Court has
which concerned an application for an interlocutory mandatory
jurisdiction to hear claims having a monetary value not exceeding
injunction, the Supreme Court stated that in such a case it is
€75,000. The High Court has original jurisdiction to hear virtually
necessary for the applicant to show at least that he has a strong case
all matters irrespective of amount. However, if a claim is brought
and that he is likely to succeed at the hearing of the action.
in the High Court and the award falls within the jurisdiction of the
Circuit Court (i.e. up to €75,000), the plaintiff may only be awarded
costs applicable to an action before the Circuit Court. 3 Final Remedies
1.7 Does your jurisdiction have a reputation for attracting
3.1 Please identify the final remedies which may be
claimants or, on the contrary, defendant applications
available and describe in each case the tests which
to seize jurisdiction, and if so, why?
a court will apply in deciding whether to grant such a
remedy.
We are not aware of Ireland having a reputation for attracting
claimant or defendant applications from other jurisdictions, although Section 14 of the Competition Act provides for the following
the ongoing litigation arising from the European Commission’s possible remedies:
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■ declarations;
3.3 Are fines imposed by competition authorities and/or
■ injunctions;
any redress scheme already offered to those harmed
■ damages (for aggrieved persons but not for the CCPC/ by the infringement taken into account by the court
ComReg); when calculating the award?
■ orders requiring a dominant position to be discontinued; and
■ orders requiring the undertaking to adopt such measures The CCPC does not have the power to impose fines.
for the purpose of it ceasing to be in a dominant position or
Ireland
The calculation of damages is based on the loss suffered by a
securing an adjustment of that position including the sale of
plaintiff. Therefore, an Irish court is unlikely to take into account
assets.
fines imposed by other competition authorities in the calculation of
In addition, section 14B of the Competition Act, which was ordinary damages.
introduced by the Competition (Amendment) Act 2012, enables
We are not aware of an Irish competition case in which a redress
the CCPC or ComReg, following an investigation, to apply to the
scheme was offered by the defendant to the plaintiff in respect of
High Court to have commitments entered into by an undertaking
the infringement concerned in advance of determination of the
made an order of court. A breach of those commitments would then
proceedings. However, given that the general principle applicable
constitute contempt of court by the undertaking. This provides the
to the calculation of damages is one of compensation for loss
CCPC and ComReg with the option of bringing an investigation to
suffered, it is conceivable that a court could take into account if a
a close by agreeing not to issue proceedings in consideration of the
redress scheme had been offered by the defendant and accepted by
undertakings involved agreeing to do, or refrain from doing, such
the plaintiff in determining the damages to be awarded in respect of
things as are specified in the commitments.
the same matter.
3.2 If damages are an available remedy, on what bases
can a court determine the amount of the award? 4 Evidence
Are exemplary damages available? Are there any
examples of damages being awarded by the courts in
competition cases which are in the public domain? If 4.1 What is the standard of proof?
so, please identify any notable examples and provide
details of the amounts awarded. The standard of proof in civil competition actions in Ireland, whether
brought by a private party or by the CCPC, is on the “balance of
Regulation 4 of the Damages Regulations provides that persons who probabilities”. This means that the plaintiff is required to prove that
have suffered harm caused by an infringement of competition law his/her version of events is, on balance, more credible than that of
have a right to full compensation for that harm, including the right to the defendant. This is lower than the standard of proof applied in
compensation for actual loss and for loss of profit, plus the payment criminal cases which is “beyond a reasonable doubt”.
of interest. The Damages Regulations deleted references to an
The Competition Act provides for a number of rebuttable
entitlement to claim exemplary damages from Section 14 of the
presumptions which have an impact on the standard of proof in
Competition Act. We are not aware of any Irish competition cases
certain respects. The presumptions include:
in the public domain where exemplary damages were previously
■ where a document purports to have been created by a person,
awarded under Section 14.
it shall be presumed, unless the contrary is shown, that the
The general principle underlying the award of ordinary damages is document was created by that person and that any statement
to compensate the injured party for the loss suffered as a result of the contained therein, unless the document expressly attributes
breach of competition law in question. As regards the intention of its making to some other person, was made by that person;
the defendant, in Donovan v ESB [1997] 3 IR 573 (SC), the Supreme ■ where a document purports to have been created by a
Court held that “[the court] is not concerned with the motives or the person and addressed and sent to a second person, it shall be
intention of the party in default unless the question of exemplary presumed, unless the contrary is shown, that the document
damages arises”. was created and sent by the first person and received by the
second person, and that any statement contained therein:
Section 14(4) of the Competition Act provides that, where an action
is brought in the Circuit Court, any relief by way of damages, shall (a) unless the document expressly attributes its making to
some other person, was made by the first person; and
not, except by consent of the necessary parties in such form as may
be provided for by rules of court, be in excess of the limit of the (b) came to the notice of the second person;
jurisdiction of the Circuit Court in an action founded on tort. This ■ where a document is retrieved from an electronic storage and
arises because the Circuit Court’s maximum jurisdiction in terms retrieval system, it shall be presumed, unless the contrary is
of damages to be awarded is €75,000. The jurisdiction of the High shown, that the author of the document is the person who
Court is unlimited. ordinarily uses that electronic storage and retrieval system in
the course of his or her business;
Regulation 15 of the Damages Regulations provides that, if it
■ where an authorised officer who, in the exercise of ‘dawn raid’
proves practically impossible or excessively difficult to quantify the
powers has removed one or more documents from any place,
harm suffered on the basis of the evidence available, a court may gives evidence in any proceedings under the Competition Act
estimate the amount of such harm. A national competition authority that, to the best of the authorised officer’s knowledge and
may, upon request of the court, assist that court in determining the belief, the material is the property of any person, then the
quantum of damages. Regulation 15 also introduces a rebuttable material shall be presumed, unless the contrary is shown, to
presumption that cartel infringements cause harm for the purpose of be the property of that person; and
actions for damages. ■ where, in accordance with the above, material is presumed in
proceedings to be the property of a person and the authorised
officer concerned gives evidence that, to the best of the
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authorised officer’s knowledge and belief, the material is ■ documentary evidence: documents must be proved through
material which relates to any trade, profession, or, as the witnesses to be admissible as evidence, unless otherwise
case may be, other activity, carried on by that person, the agreed by the parties; and
material shall be presumed, unless the contrary is proved, to ■ expert evidence.
be material which relates to that trade, profession, or, as the
case may be, other activity, carried on by that person. An expert witness is entitled to give an opinion on facts which are
admitted or proven by himself/herself or other witnesses, or matters
In addition, in the context of criminal proceedings, the following
of common knowledge, or upon a hypothesis based upon assumed
Ireland
presumption applies in respect of directors, managers or other
facts. An expert is entitled to refer to materials such as reference
similar officers, or persons who purport to act in any such capacity:
works, studies and other information acquired in the course of his
■ where an offence under section 6 or 7 of the Competition or her profession. The weight that is given to expert evidence is
Act has been committed by an undertaking and the doing ultimately a matter for the judge to decide on. Expert witnesses have
of the acts that constituted the offence has been authorised,
been involved in a number of competition cases to date, including
or consented to, by a person, being a director, manager, or
other similar officer of the undertaking, or a person who in Mars v HB Ice Cream Limited, which was a follow-on action for
purports to act in any such capacity, that person as well as damages relating to the European Commission’s freezer exclusivity
the undertaking shall be guilty of an offence and shall be decision. In Competition Authority v Beef Industry Development
liable to be proceeded against and punished as if he or she Society Limited, in addition to the parties using expert witnesses, the
were guilty of the first-mentioned offence. Where a person is High Court appointed an expert witness to assist it with economics
proceeded against for such an offence and it is proved that, at issues arising in the case.
the material time, he or she was a director of the undertaking
SI 130/2005, which establishes the High Court Competition List,
concerned or a person employed by it whose duties included
making decisions that, to a significant extent, could have provides that the competition judge may, at an initial directions
affected the management of the undertaking, or a person who hearing, give any of a number of listed directions to facilitate the
purported to act in any such capacity, it shall be presumed, determination of the proceedings, including directing any expert
until the contrary is proved, that that person consented to the witnesses to consult with each other for the purposes of:
doing of the acts by the undertaking which constituted the (a) identifying the issues in respect of which they intend to give
commission by it of the offence concerned under sections 6 evidence;
or 7.
(b) where possible, reaching agreement on the evidence that they
intend to give in respect of those issues; and
4.2 Who bears the evidential burden of proof? (c) considering any matter which the judge may direct them
to consider, and requiring that such witnesses record in
The plaintiff bears the evidential burden of proof. The plaintiff a memorandum to be jointly submitted by them to the
must establish that he has suffered harm by reason of the wrong registrar and delivered by them to the parties, particulars of
the outcome of their consultations provided that any such
complained of. The courts favour the “but for” test in determining
outcome shall not be in any way binding on the parties.
factual causation.
See question 5.2 below for a discussion of the burden of proof in the
4.5 What are the rules on disclosure? What, if any,
context of passing on.
documents can be obtained: (i) before proceedings
have begun; (ii) during proceedings from the
4.3 Do evidential presumptions play an important role other party; and (iii) from third parties (including
in damages claims, including any presumptions of competition authorities)?
loss in cartel cases that have been applied in your
jurisdiction? The rules on disclosure in competition law cases in Ireland are
founded on the traditional rules of discovery, a process whereby a
The Competition Act provides for a number of rebuttable litigant in civil proceedings may obtain prior to the trial disclosure
presumptions in relation to evidence that apply in proceedings of documents in the possession, custody or power of another party,
brought under the Competition Act. Please see question 4.1 above or occasionally from a non-party, which are both relevant to the
for further details. matters in dispute and necessary to dispose fairly of the case or
Regulation 15(3) of the Damages Regulations provides for a to save costs. While there is no definition of ‘document’ set out
rebuttable presumption that cartel infringements cause harm for the in court rules, the term “document” is broadly defined in case law
purpose of an action for damages. We are not aware of the concept as meaning anything which contains information; see McCarthy v
of presumption of loss being raised in cartel cases in Ireland before O’Flynn [1979] IR 127.
the introduction of the Damages Regulations. The Damages Regulations introduced a principle of proportionality
in relation to the disclosure of evidence in follow-on actions for
4.4 Are there limitations on the forms of evidence which damages. “Evidence” is defined in this context as “all types of
may be put forward by either side? Is expert evidence means of proof admissible before the court seized and, in particular,
accepted by the courts? documents and all other objects containing information, irrespective
of the medium on which the information is stored”.
The following forms of evidence are generally accepted by the The discovery process takes place pre-trial and will usually
courts: commence after the close of the exchange of pleadings. Discovery
■ oral evidence: the primary form of evidence in trials in Ireland can be made on a voluntary basis where the parties consent, or by
is oral evidence where witnesses are examined by their own order of the court where a party refuses the other party’s request and
lawyers and cross-examined by the opposing party’s lawyers; the requesting party makes an application for an order for discovery.
■ written evidence: evidence may also be admissible in the Requests for discovery in High Court cases must list the precise
form of sworn affidavits; categories of documents sought and in each case the reasons why
discovery of the category of documents are relevant to the matters
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in dispute and necessary to dispose fairly of the case or to save the Competition (Amendment) Act 2012 whereby a finding by an
costs. At Circuit Court level, documents may be requested in more Irish court of a breach of section 4 or 5 of the Competition Act,
general terms. Discovery can be sought from non-parties (including or Articles 101 or 102 TFEU, will be regarded as res judicata (i.e.
competition authorities), although additional criteria apply in such already adjudicated and unnecessary to be considered again) in any
a case, including that the documents in question are not otherwise subsequent civil proceedings. Accordingly, a plaintiff in a follow-
available to the applicant. The Damages Regulations place certain on action does not have to prove the infringement of competition
limitations on access to and use of material in competition authority law occurred and only has to prove causation, loss and the quantum
Ireland
files and prohibit the disclosure of leniency statements and settlement of damages that they are entitled to if successful.
submissions in follow-on actions for damages. Legal privilege may
be asserted over certain types of documents including confidential
4.8 How would courts deal with issues of commercial
communications passing between a lawyer and client created for confidentiality that may arise in competition
the purpose of providing legal advice, and documents produced proceedings?
in contemplation of or during legal proceedings for the sole or
dominant purpose of those proceedings. In Ireland, the concept of Article 34.1 of the Constitution of Ireland provides justice shall be
legal privilege is broader than the concept under EU law as defined administered in courts established by law by judges appointed in the
by the General Court in C-550/07 P Akzo Nobel Chemicals Ltd and manner provided by the Constitution, and, save in such special and
Akcross Chemicals Ltd v The European Commission. In particular, limited cases as may be prescribed by law, shall be administered
under Irish law legal privilege applies to in-house legal counsel as in public. As a result, Irish civil proceedings are generally heard
well as external legal counsel. in public. In certain limited circumstances, such as in family law
cases, cases can be heard in camera, i.e. in private.
4.6 Can witnesses be forced to appear? To what extent, if Third parties do not have access to documents used in a case. The
any, is cross-examination of witnesses possible? issue of commercial confidentiality of documents used in a case is
largely covered by the rules on discovery. In particular, there is an
Where a witness is present in Ireland, he or she may be forced to implied undertaking that discovered documents can only be used
appear to give evidence at trial by service of a subpoena by either for the purpose of the proceedings in which they were discovered.
party. Any witness, properly served with a subpoena, who fails to Courts may refuse requests for discovery if, as a result of producing
attend, can be attached for contempt of court, since a subpoena is an them, the person requested to produce documents would be
order from the court to attend the hearing for the purpose of giving prejudiced in a manner that could not be adequately compensated in
evidence. monetary terms as a result of producing them. However, Regulation
There are two types of subpoena: 5(2) of the Damages Regulations provides that a court may order the
■ one which requires a witness to attend court to give oral disclosure of evidence containing confidential information where it
evidence; and considers it relevant to an action for damages.
■ one which requires a witness not only to attend for the purpose An application can be made to court for directions to maintain the
of giving evidence, but also to bring certain documents confidentiality of commercially sensitive information in affidavits,
specified in the subpoena. exhibits to affidavits or other documents. For example, such
Cross-examination of witnesses is a normal part of the trial process directions may provide for the use of redacted versions of affidavits
in Ireland. and exhibits to affidavits or may provide for procedures to be
followed for the handling of evidence in open court in a manner that
Council Regulation (EC) 1206/2001 on cooperation between the
protects the confidentiality of commercially sensitive information.
courts of the Member States in the taking of evidence in civil or
commercial matters provides for rules governing the calling of In Competition Authority O’Regan & Others [2007] IESC 22, which
witnesses located in other EU Member States. involved input from the European Commission pursuant to Article
11(4) of Regulation 1/2003, the High Court required an undertaking
from the European Commission regarding confidentiality.
4.7 Does an infringement decision by a national or
international competition authority, or an authority
from another country, have probative value as to 4.9 Is there provision for the national competition
liability and enable claimants to pursue follow-on authority in your jurisdiction (and/or the European
claims for damages in the courts? Commission, in EU Member States) to express
its views or analysis in relation to the case? If so,
The case law of the Court of Justice of the European Union how common is it for the competition authority (or
European Commission) to do so?
(“CJEU”) and Council Regulation (EC) 1/2003 (“Regulation
1/2003”) confirms that in proceedings before EU national courts,
including in Ireland, a European Commission decision finding Part III of SI 130 of 2005 implements Article 15(3) of Regulation
an infringement of EU competition law constitutes proof that the 1/2003 by enabling the CCPC and/or the European Commission to
behaviour took place and was illegal. make observations on matters that are before the High Court. The
CCPC and the European Commission can make written observations
As noted in response to question 1.5 above, the Damages Regulations
to the court. However, if they wish to submit oral observations, they
provide that an infringement of competition law found by a final
must seek leave of the court to do so. The rules also provide that
decision of a national competition authority or a review court is
the CCPC may be invited to make written or oral submissions on
deemed to be irrefutably established for the purposes of an action
the judge’s own motion or on the application of any of the parties to
for damages. A “final decision” means a decision which cannot, or
the proceedings. The rules provide that parties have an opportunity
that can no longer, be appealed. The final decision of a competition
to review and respond to observations made by the CCPC or the
authority in another Member State may be presented as at least
European Commission.
prima facie evidence that an infringement has occurred. Follow-
on damages actions in Ireland are also facilitated by a provision in
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In the context of follow-on actions for damages, Regulation 15(4)
of the Damages Regulations provides that a national competition 5.3 Are defendants able to join other cartel participants to
authority may, upon request of the court, assist the court with respect the claim as co-defendants? If so, on what basis may
they be joined?
to the determination of the quantum of damages where the national
competition authority considers such assistance to be appropriate.
If disclosure is sought of evidence included in the file of a national Under Part III of the Civil Liability Act 1961, where two or more
competition authority, Regulation 6(9) of the Damages Regulations people are responsible to a plaintiff for the same injury or damage,
they are considered to be “concurrent wrongdoers” and are each
Ireland
provides that, to the extent that a competition authority is willing to
state its views on the proportionality of disclosure requests, it may, liable for the whole of the damage in respect of which they are
acting on its own initiative, submit observations to a court before concurrent wrongdoers. Section 27(1)(b) of the Civil Liability Act
which a disclosure order is sought. 1961 allows for the joinder of relevant third parties to existing Irish
court proceedings “as soon as is reasonably possible” via the third
The Competition Authority made an application to appear as amicus
party procedure.
curiae in Calor Teoranta v Tervas Limited and others, High Court
Record 2003 No. 5034 P. However, before the application could Third party procedure is governed by Order 7 of the Rules of the
be heard, the parties agreed to a stay of the proceedings pending Circuit Court or Order 16 of the Rules of the Superior Courts. A
the outcome of the Competition Authority’s review of competition court may grant leave to a defendant to issue and serve a third party
in the market for bulk liquid petroleum gas. The case did not notice where the defendant claims that:
subsequently go to trial. (a) he/she is entitled to contribution or indemnity;
In 2010, the European Commission submitted amicus curiae (b) he/she is entitled to any relief or remedy relating to or
observations to the High Court in Competition Authority v Beef connected with the original subject matter of the action and
substantially the same as some relief or remedy claimed by
Industry Development Society Ltd and Barry Brothers (Carrigmore)
the plaintiff; or
Meats Ltd, which was a case that concerned a rationalisation plan for
the Irish beef processor sector to address structural long-term over- (c) any question or issue relating to or connected with the said
subject matter is substantially the same as some question
capacity. The observations related to the European Commission’s
or issue arising between the plaintiff and the defendant and
views on the application of Article 101(3) TFEU. should properly be determined not only as between the
plaintiff and the defendant but as between the plaintiff and the
defendant and the third party or between any or either of them.
5 Justification / Defences
Regulation 10 of the Damages Regulations contains a saver for SMEs
whereby they may be shielded from the full effect of the principle of
5.1 Is a defence of justification/public interest available? joint and several liability provided that certain conditions are met.
Regulation 10 also provides that an infringer of competition law
A public interest defence arising from the general principles of law may recover a contribution from any other infringer, the amount of
may be raised, but there have been no cases to date in which this has which shall be determined in the light of their relative responsibility
been successful. for the harm caused by the infringement. However, the amount of
contribution of an infringer who has been granted immunity shall not
5.2 Is the “passing on defence” available and do indirect exceed the amount of the harm it caused to its own direct or indirect
purchasers have legal standing to sue? purchasers or providers. To the extent that the infringement caused
harm to injured parties other than the direct or indirect purchasers or
Part 4 of the Damages Regulations makes specific provision, for providers of the infringers, the amount of any contribution from an
the first time in Irish competition law, for the concept of passing on. immunity recipient to other infringers shall be determined in light of
its relative responsibility for that harm.
Regulation 12 provides that a defendant in an action for damages
can invoke the passing on defence. It is for the defendant to prove
that an overcharge was passed on. 6 Timing
Regulation 11 of the Damages Regulations provides that indirect
purchasers are entitled to claim compensation. Compensation for
6.1 Is there a limitation period for bringing a claim for
actual loss shall not exceed the overcharge harm suffered at the
breach of competition law, and if so how long is it and
relevant level of the supply chain. This is without prejudice to the when does it start to run?
right of an injured party to claim and obtain compensation for loss of
profits due to a full or partial passing on of the overcharge. It is for
The applicable limitation period in Ireland is six years from the date
the court to decide the share of any overcharge that was passed on.
of accrual of the cause of action.
Regulation 13 provides that, in the case of an indirect purchaser,
In the case of follow-on actions for damages, the Damages
it is for the claimant to prove whether and the extent to which an
Regulations amend the Statute of Limitations 1957 by introducing
overcharge was passed on to them. However, there is a rebuttable
a new section specifically on competition damages actions, which
presumption that an indirect purchaser has proven that passing on
provides that the six-year limitation period shall not begin to run
occurred if the indirect purchaser has shown that:
before the latest of the following:
■ the defendant has committed an infringement of competition
■ the date on which the infringement ceased; and
law;
■ the date on which the claimant knows, or can reasonably be
■ the infringement of competition law has resulted in an
expected to know of: (a) the behaviour and the fact that it
overcharge for the direct purchaser of the defendant; and
constitutes an infringement; (b) the fact that the behaviour
■ the indirect purchaser has purchased goods or services that caused harm; and (c) the identity of the infringer.
were the object of the infringement of competition law, or has
purchased goods or services derived from or containing them.
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In practice, a potential claimant may only become aware of all is usually awarded its reasonable costs, although the courts have a
of these aspects after a finding of infringement by a competition level of discretion in determining the award of costs.
authority. Costs are recoverable pursuant to an order for costs measured under
For the purpose of the limitation period, time does not run during either one of three categories:
the following periods: (a) “party to party” (payable by one party to an action to another);
■ periods during which an investigation is being conducted (b) “solicitor and client” (payable by one party to an action to
by the Competition and Consumer Protection Commission, another but on a more generous scale); and
Ireland
the Commission for Communications Regulation or the
European Commission; (c) “solicitor and own client” (payable to the client’s own
solicitor as a matter of contract).
■ periods during which domestic or European court proceedings
relating to an infringement of competition law are pending; There may be certain elements of costs which are not recoverable
and by a successful party.
■ periods during which a consensual dispute resolution process
relating to an infringement of competition law is being 8.2 Are lawyers permitted to act on a contingency fee
conducted. basis?
The effect of these suspensory provisions is that the window for
issuing competition damages actions in Ireland is longer than is Lawyers are not permitted to act on a contingency fee basis.
generally the case for other types of actions.
8.3 Is third party funding of competition law claims
6.2 Broadly speaking, how long does a typical breach of permitted? If so, has this option been used in many
competition law claim take to bring to trial and final cases to date?
judgment? Is it possible to expedite proceedings?
As a general rule, third party funding of litigation is currently not
A civil claim typically takes between one and three years, but timing permitted in Ireland due to the prohibition under Irish law of the
will vary depending on the complexity of the case. practices known as “maintenance” and “champerty”. Maintenance is
As noted above, SI 130/2005 introduced a High Court Competition the funding of litigation by someone with no legitimate interest in the
List and has provided for procedures that are intended to expedite litigation. Champerty is the funding of litigation in return for a share
the hearing of competition proceedings and enhance the case in the proceeds of the litigation. It is therefore unlawful for a party
management of such a case. without a legitimate interest to fund the litigation of another, or to
fund litigation in return for a share of the proceeds. This position was
recently confirmed by the Irish Supreme Court in Persona Digital
7 Settlement Telephony Ltd v The Minister for Public Enterprise [2017] IESC 27.
7.1 Do parties require the permission of the court to 9 Appeal
discontinue breach of competition law claims (for
example if a settlement is reached)?
9.1 Can decisions of the court be appealed?
No such permission is required.
District Court decisions may be appealed to the Circuit Court or, on
7.2 If collective claims, class actions and/or a point of law, to the High Court.
representative actions are permitted, is collective Circuit Court decisions may be appealed to the High Court or, on a
settlement/settlement by the representative body on point of law, to the Court of Appeal.
behalf of the claimants also permitted, and if so on
what basis? High Court decisions about whether or not a law is constitutional
may be appealed to the Court of Appeal. High Court decisions may
Representative bodies may bring representative actions on behalf be appealed on a point of law to the Supreme Court if it is satisfied
of their members. Representative bodies may seek injunctions or that there are exceptional circumstances warranting a direct or
declaratory relief but may not sue for damages on behalf of their “leapfrog” appeal to it.
members, since damages must be assessed from the point of view of Decisions of the Court of Appeal may be appealed to the Supreme
the loss of the plaintiff. Court if it is satisfied that the decision involves a matter of general
Settlement agreements may be reached between parties to a public importance or, in the interests of justice, it is necessary that
competition action. Permission from the court is not required to there be an appeal to the Supreme Court.
reach such an agreement.
10 Leniency
8 Costs
10.1 Is leniency offered by a national competition authority
in your jurisdiction? If so, is (a) a successful, and
8.1 Can the claimant/defendant recover its legal costs
(b) an unsuccessful applicant for leniency given
from the unsuccessful party?
immunity from civil claims?
Parties initially bear their own legal costs for proceedings, but may The Irish Cartel Immunity Programme (“Immunity Programme”)
obtain a court order for costs subsequently. The general principle outlines the policy of both the CCPC and the DPP in considering
is that “costs follow the event”, which means that a successful party
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