Competition Litigation 2021 A practical cross-border insight into competition litigation work 13th Edition Featuring contributions from: Advokatfirmaet Sune Troels Poulsen Economic Insight Limited Ledesma Uribe y Rodriguez Rivero S.C. Advokatfirmaet Thommessen AS Gall Nagashima Ohno & Tsunematsu Ashurst LLP Galvez Pascual Osborne Clarke Barun Law LLC Hausfeld & Co. LLP Pinheiro Neto Advogados DALDEWOLF Haver & Mailänder Rechtsanwälte Preslmayr Rechtsanwälte OG DDPV Studio Legale Partnerschaft mbB Shearman & Sterling LLP Dittmar & Indrenius Honoré & Fallesen Law Firm Stewarts ISBN 978-1-83918-071-2 ISSN 1757-2819 Published by 59 Tanner Street London SE1 3PL United Kingdom Competition Litigation 2021 +44 207 367 0720 [email protected] th www.iclg.com 13 Edition Consulting Group Publisher Rory Smith Publisher Oliver Smith Editor Contributing Editor: Amy Norton Euan Burrows Senior Editor Sam Friend Ashurst LLP Head of Production Suzie Levy Chief Media Officer Fraser Allan CEO Jason Byles Printed by Ashford Colour Press Ltd. Cover image www.istockphoto.com ©2020 Global Legal Group Limited. All rights reserved. Unauthorised reproduction by any means, Strategic Partners digital or analogue, in whole or in part, is strictly forbidden. Disclaimer This publication is for general information purposes only. It does not purport to provide comprehen- sive 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. Table of Contents Expert Chapters To Shop or Not to Shop?: Jurisdictional Differences Following Implementation of the Damages Directive 1 Euan Burrows & Emile Abdul-Wahab, Ashurst LLP Leading by Example: A Case of Effective Private Enforcement in England and Wales 16 Scott Campbell & Luke Grimes, Hausfeld & Co. LLP Every Little Helps: Calculating Interest in Consumer Claims 22 Christopher Pickard & James Harvey, Economic Insight Limited Recovering Cartel Damages in England – A Claimant’s Guide 27 Kate Pollock & Leah Keen, Stewarts Q&A Chapters Austria Hong Kong 34 Preslmayr Rechtsanwälte OG: Mag. Dieter Hauck 106 Gall: Nick Dealy & Ashima Sood Belgium Italy 44 DALDEWOLF: Thierry Bontinck, Pierre Goffinet & 114 DDPV Studio Legale: Luciano Vasques & Laure Bersou Chiara Sciarra Brazil Japan 52 Pinheiro Neto Advogados: Leonardo Rocha e Silva & 124 Nagashima Ohno & Tsunematsu: Koki Yanagisawa Alessandro P. Giacaglia Korea Denmark 132 Barun Law LLC: Gwang Hyeon Baek & 58 Honoré & Fallesen Law Firm: Michael Honoré & Seung Jae Jeon Asbjørn Godsk Fallesen Advokatfirmaet Sune Troels Poulsen: Sune Troels Mexico 138 Poulsen Ledesma Uribe y Rodriguez Rivero S.C.: Claudia de los Ríos Olascoaga & Bernardo Carlos England & Wales Ledesma Uribe 66 Ashurst LLP: James Levy, Max Strasberg & Helen Chamberlain Netherlands 144 Osborne Clarke: Steven Verschuur & Jeroen Bedaux Finland 83 Norway Dittmar & Indrenius: Ilkka Leppihalme & 151 Toni Kalliokoski Advokatfirmaet Thommessen AS: Siri Teigum, Eivind J Vesterkjær & Heidi Jorkjend France 90 Spain Osborne Clarke SELAS: Alexandre Glatz & 158 Thibaut Marcerou Galvez Pascual: Josep Galvez, Maximilian O’Driscoll & Ander Garcia Germany 98 Haver & Mailänder Rechtsanwälte Partnerschaft mbB: USA 169 Prof. Dr. Ulrich Schnelle & Elisabeth S. Wyrembek Shearman & Sterling LLP: Todd M. Stenerson, David A. Higbee & Rachel E. Mossman Welcome From the Publisher Dear Reader, Welcome to the 13th edition of ICLG – Competition Litigation, published by Global Legal Group. This publication provides corporate counsel and international practitioners with comprehensive jurisdiction-by-jurisdiction guidance to competition litigation laws and regulations around the world, and is also available at www.iclg.com. This year, four expert chapters cover the implementation of the Damages Directive as well as private enforcement, interest in consumer claims and cartel damages. The question and answer chapters, which in this edition cover 17 jurisdictions, provide detailed answers to common questions raised by professionals dealing with competi- tion law. As always, this publication has been written by leading competition lawyers and industry specialists, for whose invaluable contributions the editors and publishers are extremely grateful. Global Legal Group would also like to extend special thanks to contributing editor Euan Burrows of Ashurst LLP for his leadership, support and expertise in bringing this project to fruition. Rory Smith Consulting Group Publisher Global Legal Group Welcome Chapter 1 1 To Shop or Not to Shop?: Jurisdictional Differences Following Implementation of Euan Burrows the Damages Directive Ashurst LLP Emile Abdul-Wahab Introduction In contrast, national measures adopted to comply with any other provisions of the Directive (i.e. those relating to procedure) may When the EU Directive on antitrust damages actions (the have limited retroactive effect, but shall not apply to actions “Directive”)1 was adopted on 26 November 2014, its stated aim for damages of which a national court was seized prior to 26 was to ensure “a more level playing field for undertakings operating in December 2014. the internal market and to improve conditions for consumers to exercise the However, the Directive does not provide further specifica- rights they derive from the internal market […] and to reduce the differ- tion on when national implementing legislation should enter ences between the Member States as to the national rules governing actions into force, or, rather unhelpfully, which of its provisions should for damages [for competition law infringements]”.2 It was widely be treated as substantive and which as procedural for these acknowledged at the time that this was a laudable but very ambi- purposes. Whilst the distinction will often be obvious, this is tious aim, given the mixture of common and civil law systems not always the case, in particular in relation to the key issue of in place across EU Member States, and the differing levels of limitation periods. private enforcement to date. As a result, it was left open to Member States to take differing Whilst all Member States have implemented the Directive approaches to the question of temporal application of national into national law as of 6 June 2018,3 it is still too early to tell implementing legislation and the distinction between proce- whether the Directive will ultimately achieve its stated aim. dural and substantive provisions, and this is indeed what has However, a comparative review of the implementing legisla- happened in practice. For example: tion adopted in different Member States indicates that, even to (a) in the UK, none of the provisions adopted to comply with the extent that the Directive establishes similar basic rules on the Directive apply to proceedings brought prior to 9 matters such as disclosure and limitation periods, the widely March 2017 (when the national implementing regulations differing approaches taken to the question of temporal appli- entered into force4). In addition, substantive provisions cation (i.e. when the new rules will apply) mean that it is likely (expressly specified in the UK implementing regulations, to be a number of years before we see any significant degree of and including all amendments to limitation periods) only harmonisation. In the meantime, the complexity of determining apply where the infringement and harm to which the claim exactly which substantive and procedural rules will apply to a relates also occurred on or after 9 March 2017; competition law claim in any given Member State remains high. (b) in the Netherlands, measures relating to non-substantive Moreover, given that the Directive only sets out minimum provisions (deemed to include new or amended measures requirements, and does not cover certain key issues such as in relation to requesting assistance of the Dutch national the possibility of collective actions, the availability of interim competition authority (“NCA”) in the quantification of injunctions in stand-alone private actions, or crucial practical loss, the prescribed binding nature of an irrevocable deci- matters such as costs and funding, significant differences are sion of the Dutch NCA, disclosure applications and appli- likely to remain between private enforcement regimes across the cations or decisions for a stay of proceedings for out-of- EU even once the implementation of the Directive takes full court dispute resolution) do not apply to actions for effect. As a result, the choice of jurisdiction (where available) damages of which a Dutch court was seized prior to 26 seems likely to continue to be a key strategic question for both December 2014. Measures relating to substantive provi- defendants and claimants (and their legal advisors). sions are stated to apply with effect from 10 February 2017 This chapter considers the approach to implementation taken (when the national implementing legislation entered into in the UK, the Netherlands, Germany, France and Spain, high- force5) with no retroactive effect, but it remains unclear lighting the key differences between the new regimes and the whether this will be interpreted to mean that it is suffi- likely future impact on antitrust damages actions. It also briefly cient that proceedings have been commenced on or after considers