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Competition Litigation 2019 11Th Edition ICLG The International Comparative Legal Guide to: Competition Litigation 2019 11th Edition A practical cross-border insight into competition litigation work Published by Global Legal Group, in association with CDR, with contributions from: ACCURA Advokatpartnerselskab Nagashima Ohno & Tsunematsu Arnold Bloch Leibler Osborne Clarke SELAS Arthur Cox Pinheiro Neto Advogados Ashurst LLP Preslmayr Rechtsanwälte OG Barun Law LLC Shearman & Sterling, LLP Blake, Cassels & Graydon LLP Skadden, Arps, Slate, Meagher & Flom LLP Čechová & Partners Stavropoulos & Partners DALDEWOLF Stewarts Dittmar & Indrenius Tassos Papadopoulos & Associates LLC GANADO Advocates Vejmelka & Wünsch, s.r.o. Hausfeld & Co. LLP Wardyński & Partners Haver & Mailänder Wilmer Cutler Pickering Hale and Dorr LLP Ledesma Uribe y Rodriguez Rivero S.C. Wolf Theiss Rechtsanwälte GmbH & Co KG Linklaters LLP Zhong Lun Law Firm Maverick Advocaten N.V. MinterEllisonRuddWatts CCommercialD DisputeR Resolution The International Comparative Legal Guide to: Competition Litigation 2019 General Chapters: 1 To Shop or not to Shop?: Jurisdictional Differences Following Implementation of the Damages Directive – Euan Burrows & Emile Abdul-Wahab, Ashurst LLP 1 2 Recovering European Cartel Damages in England – A Plaintiff’s Guide – Kenny Henderson & Kate Pollock, Stewarts 14 Contributing Editor 3 A Jurisdictional Toolkit for Claimants: Establishing Jurisdiction in England and Wales for Euan Burrows, Ashurst LLP Competition Follow-On Damages Claims Post-Vattenfall and Post-iiyama – Scott Campbell & Sales Director Luke Grimes, Hausfeld & Co. LLP 21 Florjan Osmani 4 The Right to Contribution Among Cartelists: A Progress Report – Frédéric Louis, Account Director Wilmer Cutler Pickering Hale and Dorr LLP 27 Oliver Smith Sales Support Manager Country Question and Answer Chapters: Toni Hayward 5 Australia Arnold Bloch Leibler: Zaven Mardirossian & Matthew Lees 31 Sub Editor Oliver Chang 6 Austria Preslmayr Rechtsanwälte OG: Mag. Dieter Hauck 37 Senior Editors 7 Belgium DALDEWOLF: Thierry Bontinck & Pierre Goffinet 46 Suzie Levy Caroline Collingwood 8 Brazil Pinheiro Neto Advogados: Leonardo Rocha e Silva & Alessandro Pezzolo Giacaglia 53 CEO Dror Levy 9 Canada Blake, Cassels & Graydon LLP: Robert E. Kwinter & Evangelia Litsa Kriaris 59 Group Consulting Editor 10 China Zhong Lun Law Firm: Peng Wu & Yi Xue (Josh) 67 Alan Falach 11 Cyprus Tassos Papadopoulos & Associates LLC: Marios Eliades & Alexandra Kokkinou 77 Publisher Rory Smith 12 Czech Republic Vejmelka & Wünsch, s.r.o.: Tomáš Fiala 84 Published by 13 Denmark ACCURA Advokatpartnerselskab: Jesper Fabricius & Global Legal Group Ltd. Laurits Schmidt Christensen 89 59 Tanner Street London SE1 3PL, UK 14 England & Wales Ashurst LLP: James Levy & Max Strasberg 97 Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 15 European Union Skadden, Arps, Slate, Meagher & Flom LLP: Stéphane Dionnet & Antoni Terra 122 Email: [email protected] 16 Finland Dittmar & Indrenius: Ilkka Leppihalme & Toni Kalliokoski 134 URL: www.glgroup.co.uk 17 France Osborne Clarke SELAS: Alexandre Glatz & Charles Meteaut 141 GLG Cover Design F&F Studio Design 18 Germany Haver & Mailänder: Prof. Dr. Ulrich Schnelle & Dr. Volker Soyez 148 GLG Cover Image Source iStockphoto 19 Greece Stavropoulos & Partners: Evanthia V. Tsiri & Efthymia N. Armata 155 Printed by 20 Ireland Arthur Cox: Richard Ryan & Patrick Horan 161 Ashford Colour Press Ltd. 21 Italy Ashurst LLP: Denis Fosselard & Gabriele Accardo 171 August 2018 22 Japan Nagashima Ohno & Tsunematsu: Koki Yanagisawa 178 Copyright © 2018 Global Legal Group Ltd. 23 Korea Barun Law LLC: Gwang Hyeon Baek & Seung Jae Jeon 186 All rights reserved No photocopying 24 Malta GANADO Advocates: Sylvann Aquilina Zahra & Antoine G. Cremona 192 25 Mexico Ledesma Uribe y Rodriguez Rivero S.C.: Claudia de los Ríos Olascoaga & ISBN 978-1-912509-32-4 ISSN 1757-2819 Bernardo Carlos Ledesma Uribe 203 Strategic Partners 26 Netherlands Maverick Advocaten N.V.: Bas Braeken & Martijn van de Hel 209 27 New Zealand MinterEllisonRuddWatts: Oliver Meech & April Payne 215 28 Poland Wardyński & Partners: Sabina Famirska 222 29 Portugal Linklaters LLP: Carlos Pinto Correia & Ricardo Guimarães 228 30 Romania Wolf Theiss Rechtsanwälte GmbH & Co KG: Adrian Șter & Raluca Maxim 235 31 Slovakia Čechová & Partners: Tomáš Maretta & Marek Holka 241 32 Spain Ashurst LLP: Rafael Baena & Raquel Mendieta 247 33 USA Shearman & Sterling, LLP: Todd Stenerson & Ryan Shores 258 Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. WWW.ICLG.COM Chapter 1 To Shop or not to Shop?: Jurisdictional Differences Following Implementation Euan Burrows of the Damages Directive Ashurst LLP Emile Abdul-Wahab 1 Introduction 2 Temporal Application of New Regimes 1.1 When the EU Directive on antitrust damages actions (the 2.1 Article 22 of the Directive provides that Member States shall “Directive”)1 was adopted on 26 November 2014, its stated ensure that national measures adopted to comply with the aim was to ensure “a more level playing field for undertakings substantive provisions of the Directive shall not be applied operating in the internal market and to improve conditions retroactively. In contrast, national measures adopted to for consumers to exercise the rights they derive from the comply with any other provisions of the Directive (i.e. those internal market […] and to reduce the differences between relating to procedure) may have limited retroactive effect, but the Member States as to the national rules governing actions shall not apply to actions for damages of which a national for damages [for competition law infringements]”.2 It was court was seized prior to 26 December 2014. widely acknowledged at the time that this was a laudable 2.2 However, the Directive does not provide further specification but very ambitious aim, given the mixture of common and on when national implementing legislation should enter into civil law systems in place across EU Member States, and the force, or, rather unhelpfully, which of its provisions should differing levels of private enforcement to date. be treated as substantive and which as procedural for these 1.2 Whilst all Member States have implemented the Directive purposes. Whilst the distinction will often be obvious, this is into national law as of 6 June 2018,3 it is still too early to not always the case, in particular in relation to the key issue of tell whether the Directive will ultimately achieve its stated limitation periods. As previously discussed in the ICLG to: aim. However, a comparative review of the implementing Competition Litigation 2017,4 the EU courts have previously legislation adopted in different Member States indicates that, held that new laws may apply to “future effects” or “future even to the extent that the Directive establishes similar basic consequences” of situations which arose under previous rules on matters such as disclosure and limitation periods, the law.5 Prior to the implementation of the Directive in the UK, widely differing approaches taken to the question of temporal this led to questions being raised as to the admissibility of a application (i.e. when the new rules will take apply) mean claim lodged after the implementation of the Directive which that it is likely to be a number of years before we see any related to an infringement that took place prior to that date significant degree of harmonisation. In the meantime, the and which, potentially, would have been time-barred under complexity of determining exactly which substantive and the previous law.6 procedural rules will apply to a competition law claim in any 2.3 As a result, it has been left open to Member States to take given Member State remains high. differing approaches to the question of temporal application 1.3 Moreover, given that the Directive only sets out minimum of national implementing legislation and the distinction requirements, and does not cover certain key issues such as between procedural and substantive provisions, and this is the possibility of collective actions, the availability of interim indeed what has happened in practice. For example: injunctions in standalone private actions, or crucial practical (a) in the UK, none of the provisions adopted to comply matters such as costs and funding, significant differences are with the Directive apply to proceedings brought prior to likely to remain between private enforcement regimes across 9 March 2017 (when the UK implementing regulations the EU even once the implementation of the Directive takes entered into force7). In addition, substantive provisions full effect. As a result, the choice of jurisdiction (where (expressly specified in the UK implementing regulations, available) seems likely to continue to be a key strategic and including all amendments to limitation periods) only question for both defendants and claimants (and their legal apply where the infringement and harm to which the advisors). claim relates also occurred
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