Proposed New Rules Relating To Actions For Damages For Breach Of Competition Rules In Slovenia

The Ministry for Economic Development and Technology has recently published a legislative proposal for an amendment of the Competition Act (Zakon o preprečevanju omejevanja konkurence, ZPOmK-1) to implement the 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.

The amendment provides for a number of new substantive and procedural rules aimed at facilitating actions for damages brought by injured parties against undertakings that have infringed EU or Slovenian competition law. The most important changes are briefly described below.

Joint and several liability

The amendment proposes that undertakings which have infringed competition law through joint behaviour, e.g. members of a cartel, are jointly and severally liable, meaning that the injured party will have the right to request compensation from each of those undertakings until it has been fully compensated. Certain limitations of the principle of joint liability will apply to SMEs and to undertakings which have been granted immunity from fines by a competition authority under a leniency programme.

Quantification of harm

The draft amendment also provides for rules governing the quantification of harm resulting from an infringement of competition law. In particular, it will be presumed that certain serious infringements (cartels) have caused harm. The infringer will have the right to rebut this presumption (in comparison, under general liability for damage rules the claimant needs to prove that an infringement has caused harm). The courts will also have the power to determine the amount of harm if it is established that a claimant suffered harm but the exact amount of harm cannot be determined.

Passing-On

The proposed amendment introduces rules on the passing-on of overcharges to ensure that anyone who has suffered harm as a result of a competition law infringement is able to claim compensation. In particular, both direct and indirect purchasers will be able to claim and obtain compensation. On the other hand, the infringer can invoke a passingon defence against the claimant, i.e. it can invoke as a defence the fact that the claimant passed on the whole or part of the overcharge resulting from the breach of competition law.

To avoid that various actions for damages by claimants from...