Harmonisation of Private Enforcement in the Central and Eastern European Countries

Malinauskaite, Jurgita

doi:10.1007/978-3-030-30233-7_7

Jurgita Malinauskaite^2,3

628 Accesses
1 Citations

Abstract

Private enforcement to this date has been one of the most debated and researched field in competition law. As part of the preparatory work for the development of the Antitrust Damages Directive, the European Commission commissioned a comparative study of damages actions in the region (commonly known as the Ashurst study) and found that apart from immense variations in national practice, there had been few cases in which national courts awarded damages for breaches of EU competition law. The finding of the Ashurst study discovered that private enforcement in the EU was ‘totally underdeveloped’, and that private enforcement of competition law predominantly centred in the three most claimant-friendly jurisdictions: the United Kingdom, Germany, and the Netherlands. Yet, the more recent AHRC project led by Professor Barry Rodger discovered that there has been considerably more private action claims in the field of competition law in the EU than had previously been imagined. During a period between 1 May 1999 and 1 May 2012 the project identified a total aggregate of 1268 (if to include Germany—1876) competition law cases across the EU Member States, excluding Croatia. Considerable private enforcement experience has occurred in Belgium, France, Germany, Italy, the Netherlands, Spain and the United Kingdom. In the context of private enforcement, there are differences between newer and older Member States. It has been a limited private enforcement experience in newer Member States, mainly due to their recent accession with obviously no EU judgements prior to May 2004 and January 2007 for Bulgaria and Romania. It seems that the size of the Member States in terms of both population and economy also play a role, yet, without any significant differences between older and newer Member States. For instance, newer Member States, such as Cyprus, Estonia, Latvia reported 1 case, Lithuania and Slovenia 5 and Malta 7 cases whereas older small Member States, such as Finland and Luxembourg indicated 4 cases. Hungary out of all CEE countries had the greatest number of case-law judgments, which is 15 cases. Most jurisdictions noted various reasons for a lack of private enforcement, including the complexity of cases, difficulties in obtaining the requisite evidence, insufficient experience and expertise of practitioners and judges, difficulties in calculating damages and in proving causation, substantial litigation costs, lengthy proceedings and finally awareness by potential victims of the possibility to obtain compensation for the losses caused by anti-competitive practices. Specifically, the institutional anxiety of both private parties and courts to initiate private antitrust damages claims seemed to be more visible in the newer Member States.

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Notes

1.
Waelbroeck et al. (2004).
2.
The Ashurst study disclosed about 60 cases for damages across Europe involving EU competition law and domestic equivalents but considered only damages actions and was not comprehensive in its coverages of all competition law disputes. Waelbroeck et al. (2004). In addition, an External Impact Study revealed 96 antitrust damages actions over a period between 2004 and 2007. See, Renda et al. (2007).
3.
Hodges (2014).
4.
The German data could not cover the full period of the study, therefore, the case-law data for Germany was outlined separately, given the variation in period, which was mainly between 1 January 2004 and 31 December 2009 and amounted to 608 cases in total. See Rodger (2014), p. 85.
5.
Croatia was excluded due its recent accession at that time. The project covered all cases in which the competition law aspect (Articles 101 and 102 TFEU and their domestic equivalents) was a particular issue between the parties in dispute, irrespective of the stage of the litigation process at which the dispute was resolved. Therefore, it included case-law where competition law was raised as a claim (sword) or a defence (shield). Rodger (2014), p. 14.
6.
Predominantly among large Member States.
7.
Rodger (2014), p. 88.
8.
Rodger (2014), pp. 88–92.
9.
See Cseres (2015).
10.
Article 294 of TFEU.
11.
Directive 2014/104/EU.
12.
Recital 6, Directive 2014/104/EU.
13.
Deakin and Wilkinson (1994), pp. 289–310.
14.
On 24 January 2017 the letters of Formal Notice were sent to 21 Member States which failed to communicate full transposition by 18 January 2017. Ten Member States (Denmark, Finland, Hungary, Ireland, Italy, Lithuania, Luxembourg, the Netherlands, Slovakia and Sweden) notified the Commission by 20 February 2017 of their full transposition of the Directive.
15.
Austria, Belgium, Cyprus, Croatia, the Czech Republic, Estonia, France, Germany, Ireland, Italy, Latvia, Malta, the Netherlands, Poland, Romania, Slovenia, Spain, and the United Kingdom.
16.
Commission (2017). Fact Sheet. July Infringements package. Available at: http://europa.eu/rapid/press-release_MEMO-17-1935_en.htm (accessed on 20 September 2018).
17.
By 27 September 2017.
18.
From the last update on 11 January 2018. Available a: http://ec.europa.eu/competition/antitrust/actionsdamages/directive_en.html. Accessed 26 Jan 2018.
19.
In Estonia due to the transposition of the Directive, the Code of Civil Procedure as well as the Code of Criminal Procedure were also amended.
20.
See Table 7.2. However, there was a need to make some changes in these existing laws. Bernatt and Gac (2018), p. 293.
21.
No. 350/2016 Coll.
22.
No. 136/2001 Coll.
23.
No. 347/1990 Coll.
24.
Yet, they have a broader application of the competition law provisions in comparison with the Competition Act which literally followed the directive and applies solely to claims stemming from the infringements of Articles 101 and 102 TFEU (and domestic equivalents).
25.
Petrov (2018). Political changes and the lengthy consultation process were also the reasons for late transposition of the Directive in Poland. The new Act came into force on 27 June 2017.
26.
The full name of the Ministry in Croatia is the Ministry of the Economy, Entrepreneurship and Crafts, which empowered the Croatian Competition Agency and its experts to lead the work group to draft the proposal.
27.
The full name of the Ministry in Slovenia is the Ministry of Economic Development and Technology.
28.
Note: there was no expert Committee appointed in Hungary to assist the drafting process.
29.
Even though the main responsibility fell under the Ministry of Justice in Poland, the preparatory work was undertaken by the Civil Law Codification Commission Panel composed of a body of experts. After the dissolvement of CLCC, implementation was undertaken by the Legislative Department of Ministry which also cooperated with the Polish Competition Authority.
30.
Act LVII of 1996 on the Prohibition of Unfair Trading Practices and Unfair Competition.
31.
No. 21/1996.
32.
Pursuant to Article 3(1) of Regulation (EC) No 1/2003. See Article 2(3) of the Directive.
33.
Second part of Chapter XV.
34.
Article 69.a CA.
35.
The scope is defined in Section 21(1) of the Competition law and Article 250⁶⁵ of the Code of Civil Procedure.
36.
The scope is defined in Article 43 of the Law on Competition in Lithuania.
37.
Article 2 ACD.
38.
Article 13 ACD. Piszcz and Wolski (2017), pp. 224–225.
39.
This recommendation was suggested by the Lithuanian Free Market Institute. See, Malinauskaite (2018).
40.
Following the Commission and the Courts’ established practice, in cases, for instance, such as C-205/03P FENIN v Commission [2006] ECR I-6295 5 CMLR; joined cases C-264, 306, 354 and 355/01 AOK-Bundesverband and other v Ichthyol-Gesellschaft Cordes [2004] ECR I-2493, 4 CMLR 22.
41.
Article 3 of the Directive.
42.
Article 3, Recital 12 of the Directive.
43.
Article 6.288 of the Civil Code.
44.
Article 6.261(1) of the Civil Code under contractual liability. There is also the principle of general delict which contains the right of compensation for damages. Yet, it does not specify what it actually entails. Article 6.263(2) of the Civil Code.
45.
Explanatory Document of the Proposal to Amend the Law on Competition No. VIII-1099 (in Lithuanian), 10 February 2016. Lietuvos Respublikos Konkurencijos Istatymo Nr VIII-1099 Pakeitimo Projekto Aiškinamasis Raštas, 2016.02.10.
46.
Article 44(2) of the Law on Competition. Also see Table 7.1.
47.
Section 21 of the Competition Law.
48.
Section 21(1) of the Competition Law.
49.
Weingerl (2016).
50.
The fault liability is regulated under the general civil liability regime in Slovenia.
51.
Weingerl (2016).
52.
No. 5/2013.
53.
See the Czech Supreme Court Case 23 Cdo 3217/2009.
54.
The Czech Competition Authority attempted to issue certain specific provisions on private enforcement of competition law in 2008, but these were rejected by the Government as superfluous. For further reading, see Kreiselova (2008).
55.
Petr (2017).
56.
This is strictly interpreted in the Czechia. In several antitrust cases the claim for lost profit was dismissed as ‘hypothetical’—e.g. the judgment of the Superior Court in Prague of 29.07.2015, Ref. No. 3 CMo 316/2014. See Petr (2017), p. 93.
57.
Damages Act, Sec. 4(2) and (3).
58.
This principle is reinforced in Art 64(1) of the Competition Law.
59.
Civil Code Art. 1531–1537.
60.
Procedural Civil Code, Art. 451–455.
61.
Article 51(2) of the Lithuanian Law on Competition.
62.
Section 20(1) of the Latvian Competition Act provides that the claims for compensation of damages, as well as infringements of competition law, including infringements of a prohibition of unfair competition, are adjudicated on the basis of special jurisdiction to the Riga City District Court. This provision is also stated in Article 250⁶⁵ of the Code of Civil Procedure.
63.
Section 9 of the Czech Civil Procedure Code No 99/1963. There are 8 regional courts in the Czech Republic. There were some discussions to allocate a single regional court, namely the Regional Court in Brno, to deal with antirust damages claims. Yet, it was dismissed, as this court does not have any relevant experience with antitrust cases. For further discussion, see Petr (2017), p. 89.
64.
District courts in Slovenia have jurisdiction to address antitrust damages claims.
65.
Article 34(b)9 of the CPA. Commercial courts in the first instance adjudicate disputes arising out of acts of unfair market competition, monopolistic agreements and disruption of equality on the single market of Croatia. Malnar (2017), p. 61.
66.
Commission staff working document, Impact Assessment Report, Damages actions for breach of the EU antitrust rules, Accompanying the proposal for a Directive of the European Parliament and of the Council 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, SWD(2013) 203 final, 11.6.2013. Available at: http://ec.europa.eu/competition/antitrust/actionsdamages/impact_assessment_en.pdf (accessed on 20 April 2017).
67.
Subsections 257 (1) of the Code of Civil Procedure and 71 (2) of the Code of Criminal Procedure, respectively.
68.
Tamm and Naaber-Kivisoo (2010).
69.
For instance, Article 199 of the Code of Civil Procedure enables the claimant to request the court to order the disclosure of evidence from the defendant or third parties subject to the certain conditions (i.e. the relevance of such information to the case in question and the fact that the defendant or a third party actually possesses it).
70.
Articles 237–238 of the Croatian Civil Procedure Act.
71.
Malnar (2017), p. 74.
72.
Vlahek and Podobnik (2017a), pp. 285–286.
73.
Petr (2017), pp. 96–97.
74.
Article 52(1) of the Law on Competition in Lithuania; Article 250⁶⁵ of the Code of Civil Procedure in Latvia provides that the disclosure of evidence can be ordered upon a party’s request.
75.
Damages Act, Sec. 18.
76.
Article 250 CPL. See Jerneva and Druviete (2017), p. 169.
77.
Proposal of Act Amending and Supplementing the Prevention of Restriction of Competition Act (Sl. Zakon o spremembah in dopolnitvah Zakona o preprečevanju omejevanja konkurence) of 17.02.2017, p. 44. Vlahek and Podobnik (2017a), p. 286.
78.
E.g. Case C-536/11 Bundeswettbewerbsbehörde v. Donau Chemie AG, ECLI:EU:C:2013:366.
79.
Petr (2017), p. 99.
80.
Article 52(2) of the Law on Competition.
81.
Art 6(1) of the Act on Antitrust Damages.
82.
Art 6(5) of the Act on Antitrust Damages.
83.
Article 5(3) of the Directive defines some conditions, such as the extent to which the claim is supported by available facts and evidence justifying the request disclose; the scope and cost of disclosure; whether the evidence contains confidential information.
84.
Damages Act, Sec. 14(2).
85.
Article 52 of the Lithuanian Law on Competition.
86.
Article 52(7) of the Law on Competition.
87.
Mikelėnas and Zaščiurinskaitė (2017), p. 205.
88.
Article 250⁶⁵ of the Code of Civil Procedure.
89.
Article 5(3) of the Directive. Petrov (2017), pp. 43–44.
90.
Galič (2015), p. 105.
91.
Article 62a of ZPOmK-1 (Prevention of Restriction of Competition Act).
92.
Sec. 238(3) Code of Civil Procedure, Art. 5(3) a) and b).
93.
Pärn-Lee (2017), pp. 118–119.
94.
This could be proportionately increased by the judge. Damages Act, Sec. 12(1) and (2).
95.
Article 5(4) of the Directive.
96.
Article 52(5) of the Law on Competition in Lithuania.
97.
Article 52(4) of the Law on Competition in Lithuania.
98.
Article 250⁶⁵ (4) of the Code of Civil Procedure in Latvia.
99.
Article 52(6) of the Law on Competition in Lithuania. A similar provision exists in Bulgaria and Hungary.
100.
Malnar (2017), p. 74. The treatment of confidential data and privileged communication is regulated in Article 62a of ZPOmK-1 in Slovenia. Vlahek and Podobnik (2017a), p. 286.
101.
Pärn-Lee (2017), p. 119.
102.
Pärn-Lee (2017), p. 120.
103.
Petrov (2017), pp. 44–45.
104.
In the Czech Republic, confidentiality of legal professional privilege is not provided in the Czech legal order. However, in antitrust proceedings, the courts require the same standard of legal professional privilege protection as under EU law. According to the Damages Act, disclosure must not conflict with the professional secrecy of independent lawyers (advocates), which is not identical to the notion of legal professional privilege. For further reading, see Petr (2017), p. 101.
105.
Article 8(1) of the Directive.
106.
Art. 102 of the Slovakian Civil Disputes Code. Blažo (2017), p. 258.
107.
Sec. 46 and 279(3) Code of Civil Procedure.
108.
This is a significant increase, as previously, the fine was EUR 40.
109.
PKL Flote case. See Druviete et al. (2017).
110.
Article 62f of ZPOmK-1. Article 62e of ZPOmK-1 also deals with the cases where a party does not abide by a court’s final decision on evidence disclosure by hiding or destroying the relevant evidence. In such cases, sanctions pursuant to the law on civil procedure regarding non-compliance with a court decision to submit documents are to be applied. See Vlahek and Podobnik (2017a), p. 287.
111.
Petrov (2017), p. 30.
112.
Article 161, 176(3), 190 and 191 CCP.
113.
Petrov (2017), p. 44.
114.
Art. 6(8) of the Act on Antitrust Damages.
115.
Art. 10(2) of the Act on Antitrust Damages. Malnar (2017), p. 74.
116.
Article 88/Q(1) of Competition Act.
117.
Damages Act, Sec. 20(1) and (2).
118.
Damages Act, Sec. 21(1).
119.
Damages Act, Sec. 23(2).
120.
Damages Act, Sec. 22(1).
121.
Petr (2017).
122.
Mircea (2017), p. 243.
123.
See Article 27 of the ACD in Poland which gives the court a possibility to presume that the relevant issue is proven and to oblige a person that refuses to disclose the evidence to cover the costs of legal proceedings (despite the result of case).
124.
Art. 28 of ACD in Poland.
125.
For instance, Latvia introduced the restricted access to the information in the leniency application before fully transposing the Directive in May 2016. See Section 12¹(1) of the Competition law.
126.
Section 10 of the Competition Law in Latvia. Article 21 of the Law on Competition in Lithuania.
127.
Article 6(4) of the Directive.
128.
Sec. 16(1) and (2) of the Damages Act.
129.
See, for instance, the Supreme Administrative of 11.08.2015, Ref. No. 6 As 43/2015, or of 9 April 2014, Ref. No. Afs 73/2013.
130.
Art. 8(1) of the Act on antitrust damages.
131.
Article 6(6) of the Directive.
132.
Nonetheless, this provision is meant to safeguard settlement procedures before the Commission or any other NCA according to their national competition law.
133.
Petrov (2017), p. 44.
134.
“искане за освобождаване от санкция или намаляване на санкции” Article 118.
135.
Mikelėnas and Zaščiurinskaitė (2017), pp. 206–207.
136.
Article 101 TFEU (and Article 5 of the Law on Competition) infringements are not all of this nature. Rules on Immunity from fines and reduction of fines for the parties to prohibited agreements, Competition Council of the Republic of Lithuania Resolution No. 1S-27, 28 February 2008, Vilnius. Given that Lithuania refrained from defining a cartel, or leniency policy (as well as leniency statement), there can be some confusion, as the Law now contains two different ambits (1) mirroring the Directive and covering only horizontal transactions; and (2) pursuant to Art 38(1) an infringement of Article 5(1)(1) domestic equivalent of Article 101 TFEU. Therefore, this confusion will have to be clarified in the future.
137.
Damages Act, Sec. 15(1) and Sec. 2(2) (a) and (b).
138.
Damages Act, Sec. 15(2) and (3).
139.
Miskolczi-Bodnár (2017), p. 147.
140.
Article 9 of the Directive.
141.
Piszcz (2017), p. 21.
142.
Damages Act, Sec. 27(2). See, Petr (2017), p. 104. A rebuttable presumption was also employed in Slovenia Art 62 g ZPOmK-1. Yet, in Slovenia most damages actions are stand-alone actions due to insufficiency of the NCA’s assessments. See Vlahek and Podobnik (2017a), p. 288.
143.
See Mircea (2017), p. 244.
144.
Article 88/R(2) Competition Act. See Miskolczi-Bodnár (2017), p. 150.
145.
Act 350/2016, Art. 4(2).
146.
Art. 192 of the Civil Dispute Code.
147.
Blažo (2017), p. 259.
148.
This position that the civil courts should deny hearing a case for damages unless the infringement was already established by the NCA was determined by the Bulgarian Supreme Court of Cassation No 520 of 28.07.2014 Case No. 4004/2013 of the SCC, Commercial division, 2ns Chamber. For further reading, see Rizova and Temnikov (2018).
149.
Piszcz (2017), p. 305. Building on the Supreme court decision (22.07.2008; II-PK 360/07 published in Lex No 500212) Piszcz argues that this factual presumption raises some doubts, where the court noted that “a party cannot challenge the fact that a court does not apply it, because the court is not obliged to apply factual presumptions”, especially in the circumstances where the court infringed the principles of logic and life experience. Piszcz (2017), p. 228. Lithuania is also using this Latin term in its Law on Competition.
150.
Article 10(2) and 10(3) of the Directive.
151.
Article 5 of the Act 350/2016.
152.
RT I, 6 December 2010, 12.
153.
Sein (2013), p. 133.
154.
Article 230 of the Obligations Act.
155.
Malnar (2017), p. 65.
156.
Article 1.125(8) of the Civil Code in Lithuania. This short limitation period, inter alia, prevented initiation of antitrust damages claims. For instance, the court dismissed damages compensation claim of Pieno žvaigždės due to the expiry of the 3-year limitation period (Supreme Administrative Court decision No. A-756-1329-1 [2.11.2010]. See, Mikelėnas and Zaščiurinskaitė (2017), p. 190.
157.
Note: in this case the limitation period begins to run when all the circumstances defined in Articles 45(2)(2) or 45(4)(3) of the Law on Competition are discovered.
158.
Article 4 of the Directive.
159.
Petrov (2017), p. 36.
160.
A new Art. 111(1) PCA in Bulgaria.
161.
Article 62j(2) ZPOmK-1.
162.
Vlahek and Podobnik (2017a), p. 278.
163.
Article 1895 of the Civil Law.
164.
Section 21⁴ of the Competition law.
165.
This new extended limitation period was introduced in Article 9(1) ACD. It also had to change its Civil Code 442¹ to add limitation period a tempore scientiae solely applicable to antitrust damages claims (the limitation period for other tort-based damages claims is 3 years).
166.
Civil Code, Sec. 636.
167.
Civil Code, Sec. 629(1).
168.
Civil Code, Sec. 620(1).
169.
The suspension shall end at the earliest 1 year after the infringement decision has become final or after the proceedings are otherwise terminated.
170.
Section 21⁴ (2) of the Competition Law in Latvia, Article 49(3) of the Law on Competition in Lithuania.
171.
Article 49(3) of the Law on Competition in Lithuania and Section 21³ (1) of the Competition law in Latvia. It only applies to the parties involved in the settlement.
172.
Vlahek and Podobnik (2017b).
173.
For instance, Article 6.279 of the Civil Code in Lithuania; Article 53 of the Obligations and Contract Act in Bulgaria.
174.
A SME is regarded an entity with no more than 50 million turnover and fewer than 250 employees. As defined in Commission Recommendation 2003/361/EC.
175.
Article 11(2) and (3) of the Directive.
176.
Article 11(4) of the Directive.
177.
Article 45(4) of the Law on Competition in Lithuania.
178.
Pärn-Lee (2017), p. 114.
179.
Act 350/2016, Art. 6(6).
180.
Article 62h ZPOmK-1. In addition, Slovakia and Slovenia embraced a broader definition of SMEs, including micro enterprises. Slovakia and Slovenia relied on the definition of SME defined not by the Recommendation 2003/361/EC, which is not binding, but to Commission Regulation (EU) No. 651/2014.
181.
The notion of ‘market participant’ has an equivalent meaning of the EU concept of an ‘undertaking’.
182.
Section 21 of the Competition Law.
183.
Article 4 of the Directive. The Lithuanian explanatory memorandum prepared by the Ministry of Economy, 10/2/2016 (in Lithuanian). Lietuvos Respublikos Konkurencijos Istatymo Nr. VIII-1099 Pakeitimo Istatymo Projekto Aiškinamasis raštas.
184.
Damages Act, Sec 7(2) (c).
185.
Petr (2017), p. 92.
186.
Article 11(2) of the Directive.
187.
Malinauskaite and Cauffman (2018).
188.
Case C-453/99 Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others ECLI:EU:C:2001:465, para 26.
189.
Article 12(1) of the Directive.
190.
Article 12(2) of the Directive.
191.
Article 14(1) of the Directive.
192.
Article 14(2) of the Directive.
193.
Article 13 of the Directive.
194.
And without prejudice to the rights and obligations of national courts under Article 30 of Regulation (EU) No 1215/2012 (Art. 15(2) of the Directive). Yet, due account should be taken of the following: (a) actions for damages that are related to the same infringement of competition law, but that are brought by claimants from other levels in the supply chain; (b) judgments resulting from actions for damages as referred to in point (a); (c) relevant information in the public domain resulting from the public enforcement of competition law.
195.
Article 12(5) of the Directive.
196.
Article 16 of the Directive.
197.
These were transposed in Section 1 (8¹) and (7¹) in of the Latvian Competition Act and Article 3 (20) and (12) of the Law on Competition in Lithuania respectively.
198.
Article 47(2) the Law on Competition in Lithuania, Section 21 of the Competition Law in Latvia.
199.
Pärn-Lee (2017), pp. 114–115.
200.
Article 47(1) the Law on Competition.
201.
Section 21¹ of the Competition Law with further details on overcharge being provided in Section 21² of the Competition Law in Latvia.
202.
ZPOmK-1 Art 62.l (passing-on of overcharges) and Art 62m (damages actions of indirect purchasers).
203.
Estonian general civil laws.
204.
Pärn-Lee (2017), p. 115.
205.
Sein (2013), p. 134.
206.
Kindl and Petr (2012), pp. 82–89.
207.
Damages Act, Sec. 29.
208.
Article 17(2) of the Directive.
209.
For instance, Bulgarian lawyers are raising some concerns that it is not clear what standard of proof the court will expect in this context, as such presumptions are unusual under Bulgarian law.
210.
Nagy (2011, 2015), Nagy (2016), pp. 447–457.
211.
Section 21(3) of the Competition Act.
212.
Section 2¹(2) of the Competition Law.
213.
Article 7 of the ACD. Also see draft Explanatory notes accompanying the ACD, p. 11. Piszcz and Wolski (2017), p. 220.
214.
Article 17(1) of the Directive.
215.
Sec.127(6) Law of Obligations Act and Sec. 233(1) and (2) Code of Civil Procedure.
216.
Sec. 393(4) Code of Civil Procedure.
217.
Yet, compensation for damages must not lead to excessive compensation.
218.
Petr (2017), p. 93.
219.
Article 162 of the Code of Civil Procedure. See Petrov (2017), p. 30.
220.
Rizova and Temnikov (2018).
221.
Communication on quantifying harm in antitrust damages actions, Commission Staff Working Document, Practical Guide, Quantifying Harm in Actions for Damages based on Breaches Of Article 101 or 102 of the Treaty on the Functioning of the European Union, Accompanying the Communication from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union, C(2013) 3440.
222.
Article 44(4) of the Law on Competition defines that when it is practically impossible or excessively difficult precisely to quantify the harm suffered on the basis of the evidence available, the court informs the parties that an estimated amount of damages will be established. The estimated amount of damages is determined after taking into consideration the Commission’s recommendations on damages quantification. Experts must always follow the Commission’s recommendations in their damages calculations pursuant to Article 44(5) of the Law on Competition.
223.
Malnar (2017), pp. 69–70.
224.
Yet, it does not provide which NCAs, only the Croatian CCA or also the European Commission and any NCA of the other Member States. For further discussion, see Malnar (2017), p. 70.
225.
Article 18(1) and 18(2) of the Directive.
226.
Article 18(3) of the Directive.
227.
Article 19(1) of the Directive. In principle, any remaining claim of the settling injured party is to be exercised only against non-settling co-infringers, who shall not be permitted to recover contribution for the remaining claim from the settling co-infringer (Article 19(2)). However, unless the terms of the contractual settlement provide otherwise, the settling injured party may exercise the remaining claim against the settling co-infringer if the non-settling co-infringers cannot pay the damages that correspond to the remaining claim of the settling injured party (Article 19(3)).
228.
Section 21³ of the Competition Law. Yet, a duration for up to a maximum of 2 years was not transposed in the Latvian Competition Law.
229.
Articles 48 and 50 of the Law on Competition.
230.
Sec 167(1) of the General Part of the Civil Code Act.
231.
A suspension for the parties involved in alternative dispute resolution will occur during such procedures, albeit not exceeding 2 years. See Mircea (2017), p. 245.
232.
Petr (2017), pp. 106–107.
233.
Damages Act, Sec. 26.
234.
The Polish Code of Civil Procedure and the Civil Code already contain some provisions dealing with an ‘out-of-court method of dispute resolution’, including the interruption of the limitation period. See Piszcz and Wolski (2017), p. 230.
235.
Article 14 ACD.
236.
Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law OJ L 201, 26.7.2013, pp. 60–65. 2013/396/EU.
237.
European Commission, ‘Towards a European Horizontal Framework for Collective Redress’, COM (2013) 401.
238.
In opt-in regimes, participants in a collective action have to actively join it and are not automatically included in the action.
239.
In opt-out regimes, every victim falling within the parameters of the group or class on behalf of which an action is brought or a settlement negotiated, will automatically be included, unless the putative class member opts-out.
240.
Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law, paras 21–24.
241.
European Parliament, Committee on Legal Affairs, Draft Report on ‘Towards a Coherent European Approach to Collective Redress’, 2011/2089(INI), p. 6. This view is particularly prevalent in Germany, where important principles of party control have their foundation in the German Constitution, where Articles 2 and 103(1) of the German Constitution are taken to guarantee party’s autonomy and control over litigation. Given that opt-out litigation is predicated on the principle that the results are binding on all, unless they opt out, such forms of collective litigation are precluded by these constitutional restrictions. See, Wardhaugh (2014).
242.
The analysed CEE countries have different approaches in this context as some of them, such as Bulgaria do not define a minimum number of claimants for a class action claim; whereas most of them provide the minimum numbers in the group, which varies from at least of 10 people (i.e. in the jurisdictions, such as Poland, Hungary) to 20 people (i.e. Lithuania).
243.
Section 92 of Hungarian Competition Act (1996. évi LVII. törvény a tisztességtelen piaci magatartás és a versenykorlátozás tilalmáról); Sections 38-38/A of Hungarian Consumer Protection Act (Act CLV of 1997) (1997. évi CLV. törvény a fogyasztóvédelemről); Sections 580–591 of the new Hungarian Code on Civil Procedure to go into effect on 1 January 2018 (Act CXXX of 2016 on the Code of Civil Procedure, in Hungarian: 2016. évi CXXX. törvény a polgári perrendtartásról).
244.
Sections 580–591 of the new Hungarian Code on Civil Procedure to go into effect on 1 January 2018 (Act CXXX of 2016 on the Code of Civil Procedure, in Hungarian: 2016. évi CXXX. törvény a polgári perrendtartásról).
245.
Case Gf.40336/2008/7 (Budapest High Court of Appeals), published under No ÍH 2009.125. For further discussion, see Nagy (2015).
246.
Act on Class Actions of 17 December 2009(the PCA)—(Ustawa o dochodzeniu roszczeń w postępowaniu grupowym), published in Dziennik Ustaw (Journal of Laws) of 2010, no 7; item. 44, p. 1. As amended.
247.
Article 2.1 of the PCA.
248.
Article 2.3 of the PCA.
249.
Article 11.1 of the PCA.
250.
Jurkowska (2008), pp. 68–69; Piszcz (2012), p. 67.
251.
Piszcz (2017), p. 229.
252.
During the time of writing this chapter, the proposal for collective redress in the Czech Republic is work in progress.
253.
Promulgated in State Gazette No. 59/20.07.2007, amended and supplemented by SG No. 50/30.05.2008, modified by Judgment No. 3 of the Constitutional Court of the Republic of Bulgaria of 8.07.2008 – SG No. 63/15.07.2008, amended by SG No. 69/5.08.2008. The class action provisions can be found in Chapter 33, Sections 379–388 of the Bulgarian Code of Civil Procedure, for an English version of the statutory text see the Bulgarian Supreme Court’s website, http://www.vks.bg/english/vksen_p04_02.htm#Chapter_Thirty-Three__. Accessed 20 December 2017. See Katzarsky and Georgiev (2013).
254.
Katzarsky and Georgiev (2013), para 1.2.
255.
It has to be noted that group actions were theoretically available also before 2015. Article 49(6) of the Lithuanian Code of Civil Procedure made provision for group actions in case it was necessary to protect the public interest. However, as confirmed by ruling No. 2-492/2009 of the Court of Appeal of Lithuania, this provision could not be put into practice as it was not accompanied by any effective implementation mechanism. The class action law of 2015 repealed Article 49(6). See Juška Ž Country Report: Class Actions in Lithuania. http://globalclassactions.stanford.edu/sites/default/files/documents/LITHUANIA.pdf. Accessed 1 Jan 2019.
256.
Articles 441¹ to article 441¹⁷ of the Code of Civil Procedure.
257.
Articles 6 and 9 of the Prevention of Restriction of Competition Act (ZPOmK-1) and Articles 101 and 102 TFEU.
258.
Act No. 160/2015 Coll., Civilný súdny poriadok—CSP. Blažo (2017).
259.
Piszcz and Wolski (2017), p. 229.
260.
The British Institute of International and Comparative Law (2017). https://www.biicl.org/documents/1881_StudyontheStateofCollectiveRedress.pdf?showdocument=1. Accessed 1 Jan 2019.
261.
Latvia transposed the Directive in both—the Competition Law and the Code of Civil Procedure.
262.
Except Latvia where the Directive’s scope was expanded to embrace any competition law infringements in the Code.
263.
Blažo (2017).

References

Bernatt M, Gac M (2018) Poland. In: Rodger B, Ferro MS, Marcos F (eds) The EU antitrust damages directive. Transposition in the member states. Oxford University Press, chapter 14
Google Scholar
Blažo O (2017) Slovakia. In: Piszcz A (ed) Implementation of the EU damages directive in central and Eastern European countries. University of Warsaw Faculty of Management Press, Warsaw
Google Scholar
Commission (6 May 2003) 2003/361/EC Commission Recommendation of concerning the definition of micro, small and medium sized enterprises, C(2003) 1422
Google Scholar
Commission (11 June 2013) ‘Towards a European Horizontal Framework for Collective Redress’, COM (2013) 401
Google Scholar
Commission (2017) Fact Sheet. July Infringements package. Available at: http://europa.eu/rapid/press-release_MEMO-17-1935_en.htm. Accessed 20 Sept 2018
Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law OJ L 201, 26.7.2013, p. 60–65. 2013/396/EU
Google Scholar
Commission staff working document, Impact Assessment Report, Damages actions for breach of the EU antitrust rules, Accompanying the proposal for a Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the competition law provisions of the Member States and of the European Union. SWD(2013) 203 final
Google Scholar
Communication on quantifying harm in antitrust damages actions, Commission Staff Working Document, Practical Guide, Quantifying Harm in Actions for Damages based on Breaches Of Article 101 or 102 of the Treaty on the Functioning of the European Union, Accompanying the Communication from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union, C(2013) 3440
Google Scholar
Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty OJ L 1, 4.1.2003, pp 1–25
Google Scholar
Cseres K (2015) Harmonising private enforcement of competition law in central and Eastern Europe: the effectiveness of legal transplants through consumer collective actions. Yearb Antitrust Regul Stud 8(12)
Google Scholar
Deakin S, Wilkinson F (1994) Rights versus efficiency? The economic case for transnational labour standards. Ind Law J 23:289–310
Article Google Scholar
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 Text with EEA relevance OJ L 349, 5.12.2014, pp 1–19
Google Scholar
Druviete I, Jerņeva J, Ravindran U (2017) Disclosure of evidence in central and Eastern European countries in light of the implementation of the damages directive. Yearb Antitrust Regul Stud 10(15):197–222
Google Scholar
European Parliament, Committee on Legal Affairs (15 July 2011) Draft Report on ‘Towards a Coherent European Approach to Collective Redress’, 2011/2089(INI)
Google Scholar
Galič A (2015) Disclosure of documents in private antitrust enforcement litigation. Yearb Antitrust Regul Stud 2:99–126
Google Scholar
Hodges C (2014) Competition law comparative private enforcement and collective redress across the EU. In: Rodger B (ed) Competition law comparative private enforcement and collective redress across the EU. Wolters Kluwer
Google Scholar
Jerneva J, Druviete I (2017) Latvia. In: Piszcz A (ed) Implementation of the EU damages directive in central and Eastern European countries. University of Warsaw Faculty of Management Press, Warsaw
Google Scholar
Jurkowska A (2008) Antitrust private enforcement – case of Poland. Yearb Antitrust Regul Stud 1(1):59–79
Google Scholar
Juška Ž Country Report: Class Actions in Lithuania. http://globalclassactions.stanford.edu/sites/default/files/documents/LITHUANIA.pdf. Accessed 1 Jan 2019
Katzarsky A, Georgiev G (2013) Bulgaria p 64. In: Global Legal Group (2012) The International Comparative Legal Guide to Class and Group Actions
Google Scholar
Kindl J, Petr M (2012) In: Blanke G, Nazzini R (eds) International competition law. A multi-jurisdictional handbook. Kluwer Law International
Google Scholar
Kreiselova I (2008) Private enforcement of competition law again, but in a different way (in Czech). Informační list ÚOHS 2:4–5. Quoted in: Petr M (2017) The Scope of the Implementation of the Damages Directive in CEE States. Yearbook of Antitrust and Regulatory Studies 10(15)
Google Scholar
Malinauskaite J (2018) Lithuania. In: Roger B, Ferro MS, Marcos F (eds) The EU antitrust damages directive. Transposition in the member states. Oxford University Press, chapter 11
Google Scholar
Malinauskaite J, Cauffman C (2018) The transposition of the antitrust damages directive in the small member states of the EU—A comparative perspective. J Eur Compet Law Pract 9(8):496–512
Article Google Scholar
Malnar VB (2017) Croatia. In: Piszcz A (ed) Implementation of the EU damages directive in central and Eastern European countries. University of Warsaw Faculty of Management Press, Warsaw
Google Scholar
Mikelėnas V, Zaščiurinskaitė R (2017) Lithuania. In: Piszcz A (ed) Implementation of the EU damages directive in central and Eastern European countries. University of Warsaw Faculty of Management Press, Warsaw
Google Scholar
Mircea V (2017) Romania. In: Piszcz A (ed) Implementation of the EU damages directive in central and Eastern European countries. University of Warsaw Faculty of Management Press, Warsaw
Google Scholar
Miskolczi-Bodnár P (2017) Hungary. In: Piszcz A (ed) Implementation of the EU damages directive in central and Eastern European countries. University of Warsaw Faculty of Management Press, Warsaw
Google Scholar
Nagy CI (2011) The new Hungarian rules on damages caused by horizontal hardcore cartels: presumed price increase and limited protection for whistleblowers – an analytical introduction. Eur Compet Law Rev 32(2):63–67
Google Scholar
Nagy CI (2015) The European collective redress debate after the European Commission’s recommendation: one step forward, two steps back? Maastricht J Eur Comp Law 22(4):530–552
Article Google Scholar
Nagy CI (2016) Hungary (competition law). Wolters Kluwer, Budapest
Google Scholar
Pärn-Lee E (2017) Estonia. In: Piszcz A (ed) Implementation of the EU damages directive in central and Eastern European countries. University of Warsaw Faculty of Management Press, Warsaw
Google Scholar
Petr M (2017) Czech Republic. In: Piszcz A (ed) Implementation of the EU damages directive in central and Eastern European countries. University of Warsaw Faculty of Management Press, Warsaw
Google Scholar
Petrov A (2017) Bulgaria. In: Piszcz A (ed) Implementation of the EU damages directive in central and Eastern European countries. University of Warsaw Faculty of Management Press, Warsaw
Google Scholar
Petrov A (2018) Implementation of the EU Damages Directive in Bulgaria. Available via SSRN. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3126799. Accessed 1 Jan 2019
Piszcz A (2012) Still-unpopular sanctions: developments in private antitrust enforcement in Poland after the 2008 white paper. Yearb Antitrust Regul Stud 5(7):58–76
Google Scholar
Piszcz A (2017) Que vadi CEE? Summary. In: Piszcz A (ed) Implementation of the EU damages directive in central and Eastern European countries. University of Warsaw Faculty of Management Press, Warsaw
Google Scholar
Piszcz A, Wolski D (2017) Poland. In: Piszcz A (ed) Implementation of the EU damages directive in central and Eastern European countries. University of Warsaw, Faculty of Management Press
Google Scholar
Renda A et al (2007) Making damages Actions more effective in the EU: welfare impact and potential scenarios. http://ec.europa.eu/competition/antitrust/actionsdamages/files_white_paper/impact_study.pdf. Accessed 10 Jan 2019
Rizova A, Temnikov O (2018) Private damages directive implemented. Wolf Theiss
Google Scholar
Rodger B (2014) Competition law comparative private enforcement and collective redress across the EU. Wolters Kluwer
Google Scholar
Sein K (2013) Private enforcement of competition law – the case of Estonia. Yearb Antitrust Regul Stud 6(8):129–139
Google Scholar
Tamm, E, Naaber-Kivisoo, L (2010) Estonia. Competition Litigation. Global Legal Group
Google Scholar
The British Institute of International and Comparative Law (2017) State of Collective Redress in the EU in the Context of the Implementation of the Commission Recommendation. JUST/2016/JCOO/FW/CIVI/0099. https://www.biicl.org/documents/1881_StudyontheStateofCollectiveRedress.pdf?showdocument=1. Accessed 1 Jan 2019
Vlahek A, Podobnik K (2017a) Provisions of the damages directive on limitation periods and their implementation in CEE countries. Yearb Antitrust Regul Stud 10(15):165–166
Google Scholar
Vlahek A, Podobnik K (2017b) Slovenia. In: Piszcz A (ed) Implementation of the EU damages directive in central and Eastern European countries. University of Warsaw Faculty of Management Press, Warsaw
Google Scholar
Waelbroeck D et al (2004) Study on the conditions of claims for damages in case of infringement of EC competition rules. Available at: http://ec.europa.eu/competition/antitrust/actionsdamages/comparative_report_clean_en.pdf. Accessed 10 June 2019
Wardhaugh B (2014) Bogeymen, lunatics and fanatics: collective actions and the private enforcement of European competition law. Leg Stud 34(1):1–23
Article Google Scholar
Weingerl P (2016) The implementation of the antitrust damages directive in Slovenia: tensions with the (lurking) preventive character of liability in damages? LeXonomica 8(2):139–159
Google Scholar

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Brunel Law School, Brunel University London, Uxbridge, UK
Jurgita Malinauskaite
Vytautas Magnus University, Kaunas, Lithuania
Jurgita Malinauskaite

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Malinauskaite, J. (2020). Harmonisation of Private Enforcement in the Central and Eastern European Countries. In: Harmonisation of EU Competition Law Enforcement. Springer, Cham. https://doi.org/10.1007/978-3-030-30233-7_7

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