Competitive markets
ICC Compendium of Antitrust Damages Actions
In response to changes in the international antitrust regulatory environment, the ICC Compendium of Antitrust Damages Actions aims to provide guidance on antitrust litigation practices in an array of key jurisdictions and to raise awareness on the trends that are evolving across borders.
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Effective antitrust enforcement is key to support a resilient economic recovery. Companies need to understand the risks they face to enable essential trade and investment.
The Compendium highlights the opportunity for competition agencies to adopt best practices while avoiding legal uncertainty unduly inhibiting cross-border commerce.
The Compendium is a strategic resource for antitrust experts, be they in-house counsel, antitrust lawyers or economists. It gives a snapshot of all relevant information on antitrust damages in the most important jurisdictions.
With the Compendium of Antitrust Damages Actions, ICC aims to make a meaningful contribution to the debate on private antitrust law enforcement and the consequences for business.
Why is the ICC Compendium of Antitrust Damages Actions relevant?
The role of private competition law enforcement in ensuring fair and undistorted market conditions, which used to be limited to the United States for decades, has been pushed to the fore following the adoption by the European Union of Directive 2014/104. The transposition of the Directive by the EU Member States into national laws has spurred countries beyond Europe to adjust their legislative frameworks to foster the development of antitrust private claims. However, not all jurisdictions have adopted the same rules and antitrust litigation has become extremely complex.
The consequences for businesses, regardless of their sizes and markets, are enormous. Companies involved in anti-competitive behaviours can face heavy fines and sometimes criminal sanctions from the public enforcement of competition law. But with the increasing importance that private enforcement has gained over the last few years, they may find themselves at greater loss due to private legal actions filed against them by victims seeking compensation for damages.
What makes the ICC Compendium of Antitrust Damages Actions unique?
The ICC Compendium of Antirust Damages Actions provides a comprehensive overview of the complexities and intricacies associated with antitrust litigation across a wide range of key jurisdictions including Brazil, China, France, Germany, and the United Kingdom.
Key facts and numbers about the First Edition:
leading antitrust and litigation law specialists, including academics contributed to this edition
key topics are explained in each chapter
decisions from landmark cases
key jurisdictions around the globe are covered
Who is the Compendium for?
Businesses
will enhance their understanding of the increasing risks they face in being sued for anti-competition conducts and of the different methods of calculating damages.
Private practitioners
will have at hand an overview of the legal practices and a collection of the most important cases and decisions related to damages actions.
Judges
will see what other courts have decided on a given issue which may contribute to greater consistency and enhance integration within the EU.
Competition enforcement agencies
will have a general view of the consequences of their decisions.
Policymakers
will have more clarity to the trends that will influence the international antitrust regulatory environment for the long term.
Academics
will find insights on the essential features of the EU private enforcement regime and that of countries beyond the block.
Country reports and more
The Compendium was broken down into separate country reports to allow users to select the jurisdictions, court proceedings, and/or decisions of interest to them. The section below provides the list of countries with an outline of each chapter including links to the different reports for easy and free download.
- European Union (EU)
- Austria
- Belgium
- Brazil
- Chile
- China
- France
- Germany
- Italy
- Japan
- Korea
- Mexico
- Netherlands
- Poland
- Portugal
- Spain
- Sweden
- Turkey
- Ukraine
- United Kingdom
- United States
For many decades, private enforcement of competition rules was not part of EU law DNA. The Treaty on the Functioning of the European Union (TFEU) primarily entrusted the European Commission with the duty to enforce competition law provisions. The adoption of the Directive 2014/104 sets forth common rules among Member States in order to foster private enforcement.
| Key issues | Probative value of the Commission and NCA decisions; Private enforcement and the corporate veil; Civil liability among cartel members; Who can be a claimant; Entry into force of the Damages Directive. |
| Methodology for the selection of cases | The Court of Justice does not directly hear cases of private enforcement and has developed its case law in that area through preliminary rulings under Article 267 TFEU. This mechanism allows national courts from all EU Member States to request the Court of Justice’s interpretation of EU law. Cases presented in the EU chapter may refer to national proceedingsdeveloped in other chapters of this compendium represent the law that can be directly invoked at national level. |
| Number of decisions in this chapter | 14 |
| Country reports | EU – Court proceedings EU – Key decisions |
| Author(s) | François Brunet Pierre Chellet |
| About the Compendium | “The Compendium will provide academics and practitioners with insights on the essential features of the EU private enforcement regime and the key judgments by the Court of Justice.“ Pierre Chellet – Academic Assistant, College of Europe |
Private antitrust litigation has a long tradition in Austria, specifically since 1993 when individual locus standi before the Cartel Court was introduced. It is not limited to damages claims.
| Key issues | Jurisdiction; Limitation, Requirements of a sufficiently substantiated claim; Burden of proof; Passing-on and the standing of indirect purchasers; umbrella pricing effects; Disclosure of evidence. |
| Methodology for the selection of cases | The case selection includes the most relevant decisions of the Austrian Supreme Court in the field of antitrust damages and does not attempt to be exhaustive. Decisions of lower courts in civil matters are usually not publicly available. |
| Number of decisions in this chapter | 14 |
| Country reports | Austria- Court proceedings Austria – Key decisions |
| Author(s) | Andreas Traugott Bernt Elsner Lothar Hofmann Florian Neumayr Markus P. Fellner Christoph Haid Stefanie Stegbauer Martin Eckel David Konrath Philipp Strasser Guenter Bauer Robert Wagner |
| About the Compendium | “The compendium is a key resource for all practitioners needing an overview of the legal practices and important judgments in private enforcement cases in the jurisdictions covered.“ Guenter Bauer – Partner, Wolf Theiss Attorneys at Law |
The first relatively modern procedure in Belgian private enforcement was set out in the Law on Trade Practices of 14 July 1991 (Article 25). The Belgian Damages Act entered into force on 22 June 2017 and introduced important changes to the Belgian system intended to encourage private enforcement actions.
| Key issues | Differences between the Belgian Damages Act and the EU Damages Directive: 1. the voluntary compensation of damage by a cartel participant can be taken into account by the Belgian Competition Authority (“BCA”) when calculating the cartel fine, and 2. the definition of a cartel which also covers hub-and-spoke cartels. |
| Methodology for the selection of cases | The decisions and case law of the national courts are only published in legal journals. In addition, only selected cases are published. Therefore, there is a general lack of information as regards the use of damages claims in court, the amounts claimed, and main obstacles for a successful claim for damages for competition law infringements in Belgium. The cases were selected on the basis of a review of relevant legal journals. |
| Number of decisions in this chapter | 2 |
| Country reports | Belgium – Court proceedings Belgium – Key decisions |
| Author(s) | Gerrit Oosterhuis Angela Ortega González |
| About the Compendium | “Of great value to global business when deciding on a legal strategy, the Compendium has benefited from the work and expertise of national specialists in antitrust damages claims.“ Gerrit Oosterhuis – Partner, Houthoff |
In Brazil, private antitrust litigation is set forth in Law No. 12,529/2011, but is mainly based on general rules of tort liability provided in Law No. 10,406/2002. Private enforcement of antitrust law has historically been limited, but there is atrend of expansion resulting from stronger public prosecution of cartels and broad diffusion of competition policy.
| Key issues | Burden of Proof for the Passing-On Defence; Calculation of damages. |
| Methodology for the selection of cases | The selection includes cases found through research of case law from the various state, federal and higher courts in Brazil, based on the terms “cartel” and “Law 12.529/2011” (the Brazilian Antitrust Law), and on article 47 thereof (which provides for private antitrust damage claims). Cases in which decisions on the merits are publicly available are included, as well as the ones that represent different types of actions, requests and results. |
| Number of decisions in this chapter | 9 |
| Country reports | Brazil – Court proceedings Brazil – Key decisions |
| Author(s) | Joyce Honda Thales de Melo e Lemos José Gabriel Assis de Almeida Mickael Viglino |
| About the Compendium | “Private antitrust enforcement is expanding in Brazil because of stronger public prosecution, policy dissemination and new rules. It was our pleasure to contribute to this chapter. “ Joyce Midori Honda – Antitrust Partner, Cescon Barrieu Advogados |
Historically, Chile has used a system that has privileged the actions of the National Economic Prosecutor’s Office to prosecute the conducts contemplated in the Competition Law (Decree-law no. 211 of 1973) without leaving much room for private enforcement. Before the modification of the law, the Chilean system provided an action for damages that had to be initiated after a condemnatory judgment issued by the Competition Court and that could only be brought before the competent Civil Court according to the general procedural rules.
| Key issues | A new system of compensation for damages for attacks against competition under Law No. 20,945 1. an individual action incorporated in the new Article 30 of Competition Law; and 2. a collective action in the new Article 51 of Law No. 19,496 on the Protection of Consumer Rights. |
| Methodology for the selection of cases | To date, only two lawsuits have been filed under this new modality before the Competition Court, and both have ended without a final decision of the Court. |
| Number of decisions in this chapter | 2 |
| Country reports | Chile – Court proceedings Chile – Key decisions |
| Author(s) | Benjamin Grebe Daniella Ibaceta Santiago Errázuriz |
| About the Compendium | “The Compendium provides a full view of what is happening in different jurisdictions in antitrust damages, very useful for lawyers, economists and judges around the world.“ Benjamin Grebe – Partner, Prieto Abogados, Head of the Antitrust/Competition Department, Santiago Chile |
Throughout the enforcement of the Anti-monopoly Law of the People’s Republic of China, the number of private enforcement cases stood far behind the ones related to public enforcement. The amount of the compensation that a victim can obtain, as a result of “antitrust damages”, seems relatively low in comparison to the overall cost for private enforcement, even when the court has identified a monopoly or a cartel.
| Key issues | – |
| Methodology for the selection of cases | The judgments that are selected thereafter are the most relevant damages cases under the Anti-monopoly Law of China since 2008, including both follow-on and stand-alone proceedings, and are final. |
| Number of decisions in this chapter | 11 |
| Country reports | China – Court proceedings China – Key decisions |
| Author(s) | Yi Jin, Zhaoqi (Charles) Cen Zhan Hao Yang (Sabrina) Wang.François Brunet Pierre Chellet |
| About the Compendium | “I believe it is a valuable reference to practitioners, researchers and enforcers, as it is the first compendium to compiles antitrust damages cases in multiple jurisdictions. “ Yi Jin – Partner, King & Capital Law Firm |
Private antitrust litigation has been based on general rules of civil contractual and tort liability. Private enforcement of antitrust law has historically been limited but two changes in legislation may encourage civil actions:
- the introduction of an opt-out class action into French law by Law No. 2014-344 of 17 March 2014 and
- Ordinance No. 2017-303 and Decree No. 2017-305 of 9 March 2017 implementing the EU Directive 2014/104 of 26 November 2014 on Antitrust Damages Actions
| Key issues | The entry into force of the presumptions facilitating private actions; Starting point of limitation period – Question concerning claimants / third parties to the FCA proceedings; Calculation of damages. |
| Methodology for the selection of cases | The following cases are the most relevant ones in the French case-law for both follow-on and stand-alone proceedings. This selection does not attempt to be exhaustive. First instance judgments are included only to the extent that they are of particular relevance. In cases where the initial judgment has been appealed, only the last decision is being referred to. However, references to previous judgments are listed in the table. |
| Number of decisions in this chapter | 24 |
| Country reports | France – Court proceedings France – Key decisions |
| Author(s) | Sergio Sorinas Marie Louvet |
| About the Compendium | “The Compendium should prove to be a must-have tool for legal practitioners looking for a comprehensive and synthetic overview of the applicable regime in any jurisdiction. “ Marie Louvet – Of Counsel, Herbert Smith Freehills Paris LLP |
Germany has a dedicated set of rules that govern the recovery of (and defence against) antitrust damages claims. Equally, German courts have been dealing with respective cases for years and can rely on a breadth of experience and case law.
| Key issues | Right to bring an action; Proof of a competition law infringement and binding effect of authority decisions; Proof of causation; Defendant and concept of an undertaking. |
| Methodology for the selection of cases | The case selection covers the most important judgments of German courts in the field of competition litigation, both in follow-on cases and stand-alone cases. Cases have been chosen on the basis of their relevance but the database does not seek to be exhaustive. The cases presented in the database originate from all three possible instances (Regional Courts, Higher Regional Courts and the Federal Court of Justice). In general, in cases where a judgment of a lower court has been appealed, only the last judgment was included in the database. If there were additional findings of the lower court exceeding the last judgment’s findings, the lower court’s judgment is included in the database as well. |
| Number of decisions in this chapter | 36 |
| Country reports | Germany – Court proceedings Germany – Key decisions |
| Author(s) | Christian Ritz Carolin Marx Judith Solzbach Hanna Weber |
| About the Compendium | “With experienced judges and attorneys, coupled with an ever-growing breadth of case law, Germany is one of the go-to jurisdictions and a robust forum for antitrust damages actions.“ Carolin Marx – Partner, Hogan Lovells International LLP |
| Italy has implemented Directive no. 104/2014 of 26 November 2014 on actions for damages for infringements of EU and national competition law by the Legislative Decree no. 3/2017. However, scope remains unaffected in its essence and the Decree continues to govern actions for damages for infringements of EU and national competition law. |
| Key issues | Anticipated application of the key provisions of the Directive to the benefit of claimants as to circumstances not covered by the Decree; Evidence of infringement. |
| Methodology for the selection of cases | The database for Italy includes the most relevant Italian antitrust damages cases, both follow-on and stand-alone. It does not attempt to be exhaustive. The judgments have been selected based on their relevance. If a judgment has been appealed references to the final judgment and indications as to its output are included in the database whenever possible. |
| Number of decisions in this chapter | 22 |
| Country reports | Italy – Court proceedings Italy – Key decisions |
| Author(s) | Guido Carducci Irene de Angelis Jacques Moscianese Pietro Merlino Veronica Pinotti |
| About the Compendium | “The ICC Compendium of Antitrust Damages Actions represents one of the most innovative and comprehensive mapping exercise to date on private antitrust enforcement globally.“ Guido Carducci – Arbitrator, Attorney-at-Law, Carducci Arbitration |
In Japan, private antitrust litigation is subject to the jurisdiction of the judicial court. These antitrust cases include both claims based on the Antimonopoly Law that follow government enforcement actions and stand-alone claims based on Civil Code as general tort
| Key issues | Selection of an AML Article 25 action or a Civil Code Article 709 action; Alleviation of burden of proof on amount of damages; Documents containing attorney-client confidential communications. |
| Methodology for the selection of cases | In Japan, the number of cases recognised as antitrust lawsuits is limited. Therefore, the cases collected relate to the Antimonopoly Act where the judgments had been disclosed. Lawsuits claims for damages under the State Redress Act against the JFTC and lawsuits claims for injunctions only were excluded. The following selection hopes to include as broadly as possible claims for damages under the Civil Code and the Article 25 of the Antimonopoly Act. |
| Number of decisions in this chapter | 36 |
| Country reports | Japan – Court proceedings Japan – Key decisions |
| Author(s) | Eriko Watanabe Koki Yanagisawa Kozo Kawai Taku Nemoto Tatsuya Tsunoda |
| About the Compendium | “If you need a business-friendly analysis of the complicated antitrust and competition law follow-on damages actions landscape, this is exactly the material you must refer to.“ Akira Inoue – Partner, Baker & McKenzie LLP |
Private antitrust enforcement in South Korea has not been very vigorous compared to other jurisdictions because Korean antitrust enforcement has largely relied on the initiative of the Korea Fair Trade Commission, which has served as the primary enforcer of Korean antitrust law including the Monopoly Regulation and Fair Trade Act.
| Key issues | Calculation of damages. |
| Methodology for the selection of cases | The selection includes the most relevant and notable Korean Supreme Court cases with respect to antitrust damages actions in Korea. |
| Number of decisions in this chapter | 2 |
| Country reports | South Korea – Court proceedings South Korea – Key decisions |
| Author(s) | Cecil Saehoon Chung Woo Yul Lee Kyoung Yeon Kim |
| About the Compendium | “Superbly practical and eminently timely, the Compendium is the ICC’s latest contribution to the international business community when antitrust enforcement is on the rise again.“ Cecil Chung – Head of International Antitrust at Yulchon LLC |
Private antitrust litigation is still in an early stage of development in Mexico. Based on the concept of civil liability, private antitrust litigation is regulated under the Federal Civil Code (“FCC”) and the Federal Code of Civil Procedures(“FCCP”).
| Key issues | Recent developments aimed to enhance the practice: 1. the 2012 reform to civil legislation (FCC and FCCP) introduced and regulated class actions, and 2. the issuance in 2014 of a new Federal Law on Economic Competition with new provisions related to the claim of damages arising from anti-competitive conducts. |
| Methodology for the selection of cases | As of 2020, a few class actions have been started in Mexico and only one of them was related to cartel infringements in the health market in the State of Jalisco (started in 2019). This is why there are no legal precedents available to fully understand how private antitrust litigation will develop in this regard and what the criteria will be applied by the judiciary to quantify the damages. |
| Number of decisions in this chapter | – |
| Country reports | Mexico – Court proceedings |
| Author(s) | Ivan Szymanski Curiel Fernando Ruiz Alva |
| About the Compendium | “The Compendium will not only be a great tool to discern the path for recovering the damages caused by antitrust breaches, but also to identify the best practices around the world. “ Ivan Szymanski Curiel – Senior Associate at Santamarina y Steta S.C |
Due to its efficient and reliable judiciary, the Netherlands is an attractive jurisdiction for private antitrust litigation and damages actions. Courts fees are low, and judgments are automatically enforceable in all EU Member States. Private antitrust litigation is mainly based on
- general rules of tort liability set out in the Dutch Civil Code ,
- the Dutch Code of Civil Procedure,
- competition law provisions set out in the Dutch Competition Act,
- competition law provisions set out in the Treaty on the Functioning of the European Union ,
- in the various other EU legislative acts adopted on the basis of the TFEU, and
- in the EU soft law tools regarding private enforcement.
| Key issues | – |
| Methodology for the selection of cases | The selection includes cases in which the Dutch courts either awarded damages in relation to antitrust damages claims, or where the Dutch courts rejected the entire antitrust damages claims. The selection therefore does not cover cases that 1. were settled between the parties or 2. are still pending before the Dutch courts. Moreover, interim judgments – mainly on procedural issues – have been excluded. |
| Number of decisions in this chapter | 10 |
| Country reports | Netherlands – Court proceedings Netherlands – Key decisions |
| Author(s) | Gerjanne te Winkel Niels van Loon |
| About the Compendium | “For many jurisdictions, the ICC Compendium on Antitrust Damages Actions offers useful up to date guidance on legislative framework and past and pending private enforcement actions“ Niels van Loon – Counsel, Jones Day |
Private antitrust litigation is a relatively new concept in Poland. Following the implementation of the Damages Directive 2014/104/EU, the act on claims for compensation for damage caused by competition law infringements was adopted.
| Key issues | The entry into force of the presumptions facilitating private actions ; Starting point of the limitation period ; Calculation of damages. |
| Methodology for the selection of cases | Since the entry into force of the Act, only a few actions have been initiated and none of them have been finally decided to date. As for Polish courts, private enforcement still seems to be a sort of terra incognita. A number of Polish entrepreneurs who were affected by international cartels have sought damages in countries with a much greater tradition and experience in that area i.e. in France, Germany or the United Kingdom. |
| Number of decisions in this chapter | – |
| Country reports | Poland – Court proceedings |
| Author(s) | Marcin Trepka Elżbieta Buczkowska |
| About the Compendium | “Antitrust litigation is gaining momentum in Poland. As it is still a new competition law area, the ICC Compendium of Antitrust Damages Actions could not have a better timing. .“ Marcin Trepka – Partner, Baker McKenzie Krzyzowski i Wspolnicy sp.k. |
In Portugal, private antitrust litigation, prior to the enactment of the Private Enforcement Directive, has been based on general rules of civil contractual and tort liability. On 5 June 2018 Law No. 23/2018 was approved, implementing EU Directive 2014/104.
| Key issues | Application ratione temporis of Directive 2014/104/EU. |
| Methodology for the selection of cases | The selection includes the most relevant publicly available cases in the Portuguese case law for both follow-on and stand-alone proceedings and it does not attempt to be exhaustive. The information was retrieved from public databases of Portuguese courts, including www.dgsi.pt. |
| Number of decisions in this chapter | 6 |
| Country reports | Portugal – Court proceedings Portugal – Key decisions |
| Author(s) | Eduardo Maia Cadete Gonçalo Machado Borges Miguel Mota Delgado Miguel Miranda Miguel Gorjão-Henriques Gonçalo Anastácio Leyre Prieto Nuno Cruz Miguel Pena Machete |
| About the Compendium | “The Compendium highlights the unstoppable trend of private antitrust enforcement in numerous jurisdictions. A must read for those who believe in genuine market competition.“ Eduardo Maia Cadete – Partner, Morais Meitão Advogados |
In Spain, private damages actions have historically played a very limited role in the enforcement of competition law. The enactment of the current Spanish Competition Act 15/2007 of 3 July 2007, private enforcement of competition law was facilitated, increasing the number of antitrust damages actions brought before Spanish Courts. However, there was still no specific regulation on the liability for such kind of damages.
| Key issues | The non-retroactivity of the substantive provisions introduced by the RDL 9/2017; Subsidiaries’ liability for their parent companies’ antitrust infringements found in European Commission decisions; Calculation of damages. |
| Methodology for the selection of cases | The selection focuses on the court decisions issued after the entry into force of the RDL 9/2017, which transposed the Damages Directive into Spanish law. Prior and more paradigmatic cases, such as those related to the damages caused by the cartel of sugar producers, have also been included. These cases raise issues of particular legal interest, most of them connected to the European cartel of truck manufacturers. |
| Number of decisions in this chapter | 39 |
| Country reports | Spain – Court proceedings Spain – Key decisions |
| Author(s) | Juan Pablo Correa Delcasso Claudia Cañas Jesús Almoguera Eduardo Vázquez de Prada Rais Amils Arnal Belén Irissarry |
| About the Compendium | “A practical and easy-to-read overview of antitrust damages claims in different jurisdictions, in which several professionals have pooled their input and experience.“ Rais Amils Arnal – Litigation, Lawyer, Clifford Chance |
The applicable framework regulating private enforcement of competition law infringements in Sweden is the Competition Damages Act (2016:964), which implements Directive 2014/104/EU on antitrust damages actions. There is currently no closed or ongoing damages case under the new rules. The former rules continue to apply to damage claims relating to infringements that occurred before 27 December 2016.
| Key issues | Challenge for claimants to fulfil its burden of proof in relation to the existence of an infringement causing ground for damages. |
| Methodology for the selection of cases | Although the provisions on damages for infringements of competition rules have been in force for more than 20 years, only a limited number of competition damages cases have been tried by Swedish courts. Excluded from the report are all cases where none of the court instances that tried the case has found an infringement of the competition rules and thus no basis for review of damages claims. The current number of such cases is five and one pending before the Patent and Market Court of Appeal. Also excluded are cases where the parties have settled out of court and those subject to arbitration procedure. In relation to such cases, only limited information and no legal assessment of the circumstances is publicly available. |
| Number of decisions in this chapter | 3 |
| Country reports | Sweden – Court proceedings Sweden – Key decisions |
| Author(s) | Claes Langenius Sofia Falkner |
| About the Compendium | “The Compendium provides companies and legal practitioners with a practical overview of the important questions when evaluating risks related to antitrust damages actions.“ Sofia Falkner – Lawyer and Senior Associate, Advokatfirman Hammarskiold & Co |
Private enforcement is yet to be developed for the Turkish competition regime. The jurisprudence of the judicial authorities has not been settled yet as there is a severe lack of finalised court rulings on action(s) for damages resulting from competition law infringements. Accordingly, private enforcement of competition law is governed by civil procedural rules in Turkey.
| Key issues | Lack of tangible jurisprudential guidance. |
| Methodology for the selection of cases | The selection criteria predominantly focus on cases where the judicial review has been initiated and the ruling has been finalised. Among such finalised rulings, only the cases where the courts have ruled in favour of the applicant and granted quantifiable compensation for the antitrust related damages are referenced. Considering that the decisional practice of the Turkish courts provides only a limited number of examples, the selection criteria do not narrow the scope by applying a further materiality threshold based on the amount of the award or the damage. |
| Number of decisions in this chapter | 1 |
| Country reports | Turkey – Court proceedings Turkey – Key decisions |
| Author(s) | Şahin Ardiyok |
| About the Compendium | “In countries such as Turkey, where private antitrust enforcement is yet-to-be developed, the Compendium will serve as an inspirational guideline for comparing best practices.“ SŞahin Ardiyok – Partner, Dentons |
While Ukraine’s Antimonopoly Committee has been successful in promoting fair competition in Ukraine since 2015, national competition legislation is still under reconstruction. Particularly, further harmonisation of the Ukrainian competition regulation with that of the European Union is anticipated as stipulated by the Ukraine-EU Association Agreement.
| Key issues | – |
| Methodology for the selection of cases | In Ukraine all court decisions are public and should be published in the Unified State Register of Court Judgments. The cases related to damages actions have been selected for this chapter. |
| Number of decisions in this chapter | 4 |
| Country reports | Ukraine – Court proceedings Ukraine – Key decisions |
| Author(s) | Olexander Martinenko Daryna Ushchapivska |
| About the Compendium | “The Compendium brings awareness of instruments available to victims of antitrust infringements and a comprehensive analysis of each country’s most relevant cases.“ Daryna Ushchapivska – Associate, Kinstellar Kyiv |
In the United Kingdom there is a long-established regime for individual and corporate claimants to bring claims against others for losses caused by anti-competitive behaviour, that is breaches of Article 101 or Article 102 on the Treaty on the Functioning of the European Union (“TFEU”) and/or Chapter 1 (anti-competitive agreements) and Chapter 2 (abuse of a dominant position) of the Competition Act 1998, as amended (“CA 1998”). The CA 1998 was expanded in 2015 by the Consumer Rights Act 2015 (“CRA 2015”) and further updated from 9 March 2017 to implement the EU Damages Directive to the extent that the Directive’s provisions were not already part of United Kingdom law. Brexit is not expected to change the current regime in the short term, since it is based on United Kingdom statute (some of which implements EU Directives, and which is otherwise closely aligned with EU law) and common law.
| Key issues | Areas where the law continues to evolve: 1. Limitation 2. Collective actions 3. Pass-on Brexit |
| Methodology for the selection of cases | The United Kingdom has a substantial history of competition-related claims being brought in the High Court and the specialist Competition Appeal Tribunal. Most cases do not proceed to a full trial; it is assumed that they are settled. For this reason there is little information on the level of damages obtained by claimants, and any sums awarded in cases proceeding all the way to trial are likely to be misleading because they represent a substantially incomplete picture. The cases selected by the authors represent those in which points of particular legal interest have been raised, primarily by way of interim applications. A number raise novel issues not yet decided and continue to be monitored. These relate in particular to the limitation and collective action issues discussed in the memo, and to the question of the jurisdiction of the English courts. The list is not exhaustive. |
| Number of decisions in this chapter | 36 |
| Country reports | United Kingdom – Court proceedings United Kingdom- Key decisions |
| Author(s) | Andrew Bartlett Penny Coombs |
| About the Compendium | “This Compendium provides essential information on how a competition damages claim may be treated in a wide range of jurisdictions – vital for claimants and their lawyers to know.“ Penny Coombs – Associate Director, Osborne Clarke LLP |
Private antitrust litigation is well-established in the United States where federal law has included a private right of action to enforce the antitrust laws for over 100 years. Case law explicitly recognizes the role of private lawsuits in effective antitrust enforcement. While many of these cases follow government enforcement actions, substantial numbers are based on alleged conduct that has not been the subject of a government inquiry.In the United Kingdom there is a long-established regime for individual and corporate claimants to bring claims against others for losses caused by anti-competitive behaviour, that is breaches of Article 101 or Article 102 on the Treaty on the Functioning of the European Union (“TFEU”) and/or Chapter 1 (anti-competitive agreements) and Chapter 2 (abuse of a dominant position) of the Competition Act 1998, as amended (“CA 1998”). The CA 1998 was expanded in 2015 by the Consumer Rights Act 2015 (“CRA 2015”) and further updated from 9 March 2017 to implement the EU Damages Directive to the extent that the Directive’s provisions were not already part of United Kingdom law. Brexit is not expected to change the current regime in the short term, since it is based on United Kingdom statute (some of which implements EU Directives, and which is otherwise closely aligned with EU law) and common law.
| Key issues | Standing of Direct and Indirect Purchasers; Evolving Class Action Certification Standards; Growth of Consumer Class Actions Unrelated to Government Enforcement Investigations (Agriculture, Financial Services); Wage Fixing and No-Poach Litigation; Multi-sided Platforms. |
| Methodology for the selection of cases | The cases included in the compilation below consist of both follow-on and stand-alone actions and represent some of the most important and recent decisions shaping antitrust litigation in the United States. The compilation is not exhaustive. Instead, the focus was on decisions from the US Supreme Court or federal courts of appeal addressing important issues that regularly arise in US antitrust litigation. |
| Number of decisions in this chapter | 6 |
| Country reports | United States – Court proceedings United States – Key decisions |
| Author(s) | Benjamin Holt Nick Brod Holden Steinhauer Jill Ottenberg |
| About the Compendium | “The Compendium gives ICC members and legal practitioners a valuable resource to explore the growth of competition litigation across the globe and the impact on key jurisdictions.“ Benjamin Holt – Partner, Hogan Lovells Washington DC |
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