Competition Law Damages Actions – Rules Make Ireland An Attractive Venue For Competition Litigation

Author:Mr John Kelly

This week saw publication of the European Union (Actions for Damages for Infringements of Competition Law) Regulations 2017 ("Regulations").  The Regulations transpose into Irish law what is known as the EU Antitrust Damages Directive (2014/104 EU) ("Directive").

The Regulations are stated to be effective (retrospectively) from 27 December 2016, the deadline for compliance with Ireland's EU law obligation to transpose the Directive. Ireland is one of only ten Member States that have transposed the Directive to date.  The UK has consulted but has not yet implemented any legislation.

The Regulations are intended to simplify and standardise throughout the EU the rules for claiming compensation for damage suffered as a result of an infringement of EU or Irish competition law (eg, a price-fixing cartel that raised prices for customers). 

Some interesting aspects of the Regulations include the following:

Removal of exemplary damages from the Competition Act 2002 - The Regulations include a new definition of the "full compensation" to which a claimant is entitled and remove the right to seek exemplary damages.  To our knowledge, exemplary damages were never granted in an Irish competition case.

Inclusion of provision for defendants to rely on 'pass on' defence - The Regulations provide that no compensation is available for damage from competition law infringements (eg, over-charging) that was "passed on" to customers.

No disclosure of leniency or settlement papers -  The Regulations provide that a Court cannot order disclosure of submissions to a regulator as part of a whistle blower or settlement application (where liability may have been admitted). 

Amendments to Statute of Limitations - The Regulations amend the Statute of Limitations to clarify that the six year limitation period for competition actions does not commence until the competition infringement ceases and is suspended for the duration of any regulatory investigation into the infringement.

Although Irish law has included a specific legal basis for private competition litigation since introduction of the...

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