Damages Resulting From Competition Law Infringements: Collective Redress Easing The Way To Compensation

• Published date: 27 November 2020
• Subject Matter: Anti-trust/Competition Law, Litigation, Mediation & Arbitration, Antitrust, EU Competition , Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Schoenherr Attorneys at Law
• Author: Ms Eva 'kufca and Tja'a Ge&#269

The adoption of Directive 2014/104/EU ("Damages Directive"), which introduced a level playing field for the private competition law enforcement regime among EU Member States, has paved the way for private enforcement to gain more traction in the EU.

Private enforcement can be triggered by an injured party (be it an individual, a legal entity, an organisation, or a public entity) claiming to have incurred damages as a result of a competition law infringement. An action for damages can be brought before the courts either as a standalone claim or following the adoption of an infringement decision by the European Commission ("EC"), the Slovenian Competition Protection Agency ("CPA") or any other national competition authority.

Right to compensation

The Damages Directive was transposed into Slovenian law with the Prevention of Restriction of Competition Act (Zakon o preprečevanju omejevanje konkurence-1G), which confers a right to claim compensation to anyone who has suffered damages arising out of competition law infringements. While private enforcement actions already could be brought before the implementation of the Damages Directive (based on the general rules governing the non-contractual liability regime under the Obligations Code), the Prevention of Restriction of Competition Act now sets out a robust set of rules aimed at facilitating private enforcement actions.

In this sense, the introduced changes alleviate the claimant's burden of proof, facilitate access to evidence and provide for specific provisions applicable when determining the amount of damages resulting from competition law infringements.

Although the Damages Directive focused its efforts on removing obstacles to a more effective system of private antitrust litigation, the injured parties are still less likely to seek a remedy through time-consuming and costly litigation where the individual harm suffered is of low value. In turn, this leaves many injured parties without compensation.

Collective dispute resolution as an alternative to conventional litigation

The adoption of the Slovenian Collective Actions Act (the "CAA") has offered a solution to the aforementioned private enforcement gap and further facilitates private enforcement actions by allowing the injured parties to group together to pursue collective redress.

In the realm of competition law infringements, regardless of whether the infringement procedure before the CPA or the EC was already pending or was initiated after the...