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1

Proving the Grounds for Compensation – Reflections on Private Enforcement in the Polish Cement Cartel Case. Case Comment to the Judgment of the Court of Appeals in Cracow of 10 January 2014 (Ref. No I ACa 1322/13)

100%

Knapp M., Korycińska-Rządca P.

Yearbook of Antitrust and Regulatory Studies

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2017

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vol. 10(15)

251-268

EN

Despite the fact that the right to full compensation of harm caused by the breach of Articles 101 and 102 TFEU was confirmed in European Union jurisprudence many years ago, and that actions for damages for competition law infringements were admissible in Poland also before the transposition of Directive 2014/104/EU (hereinafter, the Damages Directive), the number of reported court cases regarding private enforcement of competition law is very low. The commented judgment of the Court of Appeals in Cracow (Sąd Apelacyjny w Krakowie) of 10 January 2014 is one of the very few judgments of Polish courts regarding actions for damages for an infringement of competition law.

2

Development of Private Enforcement of Competition Law in Lithuania

84%

Moisejevas R.

Yearbook of Antitrust and Regulatory Studies

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2015

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vol. 8(11)

35-52

EN

The article reviews the jurisprudence of Lithuanian courts on private enforcement of competition law and identifies the main obstacles for the development of this practice. The analysis of the jurisprudence makes it possible to summarise that: most rulings of the Lithuanian courts relate to cases on the abuse of dominance; usually, dominant undertakings were allegedly applying discriminatory conditions towards the injured party and; most of the claims were presented as follow-on actions after a decision of the Competition Council. The courts held that damages caused by a breach of competition law have to be recovered in accordance with Lithuania’s main principles of civil responsibility. At the same time, the courts made it clear that their jurisprudence is based on the rulings of European Courts and the main principles of EU competition law. The main obstacles for the successful development of antitrust damages claims in Lithuania are, inter alia: complexity of competition cases; difficulty in obtaining substantive evidence; proving a consequential relationship and; high legal costs. The article also analyses substantial and procedural provisions of Lithuanian legislation that regulate the submission of antitrust damage claims.

3

Passing-on of Overcharges and the Implementation of the Damages Directive in CEE Countries

84%

Moisejevas R.

Yearbook of Antitrust and Regulatory Studies

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2017

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vol. 10(15)

133-146

EN

The article focuses on the concept of passing-on of overcharges and the peculiarities of its regulation by the Damages Directive. The Damages Directive obliges Member States to ensure that the defendant in an action for damages may invoke the passing-on defence. Moreover, the Directive establishes the new framework and the main principles that govern the application of the passing-on defence. The national case law on passing-on is very insignificant in Central and Eastern European countries and many questions are expected to be raised in the courts of the CEE Member States. While discussing the concept of passing-on in the Damages Directive, a lot of emphasis should be paid to the issue of causation. Causation will definitely be the subject of most of the questions in cases when an indirect purchaser will bring a claim for damages. Causation may be tricky when an indirect purchaser claims it suffered an ‘overcharge harm’ because of passing-on. In most cases, the issue of causation will be decided mainly by national courts based on national procedural rules. Depending on the situation, passing-on may be used as a basis for the claim (as a ‘sword’) or as a defence (as a ‘shield’). It could be used as a basis for the claim by an indirect purchaser, in case s/he has suffered any harm because of the illegal actions of a cartelist or a dominant company. At the same time, it could be used as a defence by the infringer against a claim for damages. The article also analyses the specifics of the implementation of the Directive into the national laws of CEE Member States.

4

The Damages Directive and Consensual Approach to Antitrust Enforcement

67%

Moisejevas R.

Yearbook of Antitrust and Regulatory Studies

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2015

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vol. 8(12)

181-194

EN

The article focuses on the novelties introduced by the Damages Directive in the field of consensual settlements of disputes concerning private enforcement. The Damages Directive obliges Member States to ensure that the limitation period for bringing an action for damages is suspended for the duration of any consensual dispute resolution process. The Directive also establishes the main principles that govern the effect of consensual settlements on subsequent actions for damages. Since the EU framework for consensual dispute resolution of private enforcement disputes is quite new, many issues must still be solved in Member States’ practice. While analysing consensual dispute resolution in private enforcement cases, particular interest should be paid to mediation and arbitration as a form of Alternative Dispute Resolution (ADR). Mediation is often used in competition law litigation. In a mediation process, parties are subject to fewer legal costs than in litigation and arbitration. It may thus be concluded that consensual dispute resolution is usually a faster way to receive compensation. However, voluntary arrangements and ADR in competition law still raise many problems concerning both procedural and substantial legal acts.

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4 Yearbook of Antitrust and Regulatory Studies

2 2017

2 2015

3 Moisejevas R.

1 Knapp M.

1 Korycińska-Rządca P.

Proving the Grounds for Compensation – Reflections on Private Enforcement in the Polish Cement Cartel Case. Case Comment to the Judgment of the Court of Appeals in Cracow of 10 January 2014 (Ref. No I ACa 1322/13)

Development of Private Enforcement of Competition Law in Lithuania

Passing-on of Overcharges and the Implementation of the Damages Directive in CEE Countries

The Damages Directive and Consensual Approach to Antitrust Enforcement