European Union (Actions for Damages for Infringements of Competition Law) Regulations 2017.

• Jurisdiction: Ireland
• Citation: IR SI 43/2017

Contents

Regulations

Part 1

Preliminary

1. Citation and commencement

2. Interpretation

3. Application

4. Right to full compensation

Part 2

Disclosure of evidence

5. Disclosure of evidence

6. Disclosure of evidence included in file of competition authority

7. Limits on use of evidence obtained solely through access to file of competition authority

Part 3

Effect of national decisions, limitation period, joint and several liability

8. Effect of national decisions

9. Limitation period

10. Joint and several liability

Part 4

Passing-on of overcharges

11. Passing-on of overcharges and right to full compensation

12. Passing-on defence

13. Indirect purchasers

14. Actions for damages by claimants from different levels in supply chain

Part 5

Quantification of harm

15. Quantification of harm

Part 6

Consensual dispute resolution

16. Suspensive and other effects of consensual dispute resolution

17. Effect of consensual settlements on subsequent actions for damages

S.I. No. 43 of 2017

EUROPEAN UNION (ACTIONS FOR DAMAGES FOR INFRINGEMENTS OF COMPETITION LAW) REGULATIONS 2017

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 17th February, 2017.

I, MARY MITCHELL O’CONNOR, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive No. 2014/104 EU of the European Parliament and of the Council of 26 November 20141 , hereby make the following regulations:

Part 1

Preliminary

Citation and commencement

1. (1) These Regulations may be cited as the European Union (Actions for Damages for Infringements of Competition Law) Regulations 2017.

(2) These Regulations shall be deemed to have come into operation on 27 December 2016.

Interpretation

2. (1) In these Regulations—

“action for damages” means an action under law by which a claim for damages is brought before a court by an alleged injured party, or by someone acting on behalf of one or more alleged injured parties where law provides for that possibility, or by a person that succeeded in the right of the alleged injured party, including the person that acquired the claim;

“cartel” means an agreement or concerted practice between two or more competitors aimed at coordinating their competitive behaviour on the market or influencing the relevant parameters of competition through practices such as, but not limited to, the fixing or coordination of purchase or selling prices or other trading conditions, including in relation to intellectual property rights, the allocation of production or sales quotas, the sharing of markets and customers, including bid-rigging, restrictions of imports or exports or anti-competitive actions against other competitors;

“claim for damages” means a claim for compensation for harm caused by an infringement of competition law;

“competition authority” means the Commission of the European Union, a national competition authority or a foreign competition authority;

“consensual dispute resolution” means any mechanism enabling parties to reach an out of court resolution of a dispute concerning a claim for damages;

“consensual settlement” means an agreement reached through consensual dispute resolution;

“direct purchaser” means a person who acquired, directly from an infringer, products or services that were the object of an infringement of competition law;

“evidence” means all types of means of proof admissible before the court seized and, in particular, documents and all other objects containing information, irrespective of the medium on which the information is stored;

“foreign competition authority” means an authority designated by another Member State pursuant to Article 35 of Regulation (EC) No. 1/2003 of 16 December 20022 , as being responsible for the application of Articles 101 and 102 of the Treaty of the Functioning of the European Union;

“immunity recipient” means a person who, has been granted immunity from fines by a competition authority under a leniency programme;

“indirect purchaser” means a person who acquired, not directly from an infringer, but from a direct purchaser or a subsequent purchaser, products or services that were the object of an infringement of competition law, or products or services containing them or derived therefrom;

“infringement decision” means a decision of a competition authority or review court that finds an infringement of competition law;

“infringement of competition law” means an infringement of Article 101 or 102 of the Treaty on the Functioning of the European Union or of section 4 or 5 of the Competition Act 2002 (No. 14 of 2002);

“infringer” means an undertaking or association of undertakings which has committed an infringement of competition law;

“injured party” means a person that has suffered harm caused by an infringement of competition law;

“leniency programme” means a programme, known in the State as the Cartel Immunity Programme, concerning the application of Article 101 of the Treaty on the Functioning of the European Union on the basis of which a participant in a secret cartel, independently of the other undertakings involved in the cartel, cooperates with an investigation of a competition authority, by voluntarily providing presentations regarding that participant’s knowledge of, and role in, the cartel in return for which that participant receives, by decision or by a discontinuation of proceedings, immunity from, or a reduction in, fines for its involvement in the cartel;

“leniency statement” means an oral or written presentation voluntarily provided by, or on behalf of, an undertaking or a natural person to a competition authority or a record thereof, describing the knowledge of that undertaking or natural person of a cartel and describing its role therein, which presentation was drawn up specifically for submission to a competition authority with a view to obtaining immunity or a reduction of fines under a leniency programme, not including pre-existing information;

“national competition authority” means a body designated under the European Communities (Implementation of the Rules on Competition Laid Down in Articles 81 and 82 of the Treaty) Regulations 2004 ( S.I. No. 195 of 2004 ) (as amended by the European Communities (Implementation of the Rules on Competition Laid Down in Articles 81 and 82 of the Treaty) (Amendment) Regulations 2007 ( S.I. No. 525 of 2007 ));

“overcharge” means the difference between the price actually paid and the price that would otherwise have prevailed in the absence of an infringement of competition law;

“pre-existing information” means evidence that exists irrespective of the proceedings of a competition authority, whether or not such information is in the file of a competition authority;

“review court” means a court that is empowered by ordinary means of appeal to review decisions of a national competition authority or to review judgements pronouncing on those decisions, irrespective of whether that court itself has the power to find an infringement of competition law;

“settlement submission” means a voluntary presentation by, or on behalf of, an undertaking to a competition authority describing the undertaking’s acknowledgement of, or its renunciation to dispute, its participation in an infringement of competition law and its responsibility for that infringement of competition law, which was drawn up specifically to enable a competition authority to apply a simplified or expedited procedure.

(2) A word or expression which is used in these Regulations and which is also used in Directive 2014/104 EU of the European Parliament and of the Council of 26 November 20141 has, unless the context otherwise requires, the same meaning in these Regulations as it has in that Directive.

Application

3. These Regulations do not apply to infringements of competition law that occurred before 27 December 2016.

Right to full compensation

4. (1) Where a person has suffered harm caused by an infringement of competition law, the person shall be able to claim and obtain, in any action for damages under section 14 of the Competition Act 2002 , full compensation for that harm.

(2) Full compensation shall place a person who has suffered harm caused by an infringement of competition law in the position in which that person would have been had the infringement of competition law not been committed. It shall therefore cover the right to compensation for actual loss and for loss of profit, plus the payment of interest.

(3) Full compensation under these Regulations shall not lead to overcompensation, whether by means of punitive, multiple or other types of damages.

(4) Section 14 of the Competition Act 2002 is amended—

(a) in subsection (4), by deleting “, including exemplary damages,”, and

(b) in subsection (5)(b), by deleting “, including exemplary damages”.

Part 2

Disclosure of evidence

Disclosure of evidence

5. (1) A court shall limit the disclosure of evidence to that which is proportionate. In determining whether any disclosure requested by a party is proportionate, a court shall consider the legitimate interests of all parties and third parties concerned. It shall, in particular, consider:

(a) the extent to which the claim or defence is supported by available facts and evidence justifying the request to disclose evidence;

(b) the scope and cost of disclosure, especially for any third parties concerned, including preventing non-specific searches for information which is unlikely to be of relevance for the parties in the procedure;

(c) whether the evidence the disclosure of which is sought contains confidential information, especially concerning any third parties, and what arrangements are in place for protecting such confidential information.

(2) A court...