Ireland and Private Actions - The EU Damages Directive

Summary

The primary aim of the EU Damages Directive (Directive) (signed into law in the EU on 26 November 2014) is to make it easier for businesses and individuals to claim for compensation when they have been victims of a breach of EU competition law. Ireland (as well as all other Member States) have until 27 December 2016 to implement the Directive into national law (after which the Directive has an automatic force of law in its own right). At the moment, there are very few actions for damages in Ireland as a result of breaches of competition law because of a range of factors including the difficulties of finding a breach to begin with, the requirements for bringing damages actions in Courts, the expense in bringing such actions and the lack of awareness of damages actions generally. The Directive seeks to harmonise the rules governing damages across Member States in order that, in particular, small businesses and private individuals will have a more realistic option to claim damages for breach of competition law.

Method of and timetable for implementing the Damages Directive in Ireland

The implementation of the Directive in Ireland will likely be carried-out in large measure by way of a combination of legislation and changes to the Irish Rules of the Superior Courts (though there are features of the Directive that are already in place in Ireland and will probably not require additional implementation). The Government is continuing to work through these issues regarding implementation into Irish law in advance of the 27 December 2016 deadline. One of the issues that the Government will need to address is whether there will be a single system for damages actions in Ireland for a breach of Irish competition law and for a breach of EU competition law or whether there will be two separate systems.

Damages claims generally

Access to damages for breaches of EU competition law is inconsistent and fragmented across the EU. Certain Member States have easier access to redress than in other Member States (the UK being one Member State where the process of victims seeking redress for a breach of EU (and UK) competition law is regarded as more effective than, for example, Ireland).

The Damages Directive seeks to standardise the approach to redress and to make it easier for victims of anti-competitive behaviour to claim compensation. This is done by improving the link between a private damages claims and public enforcement by authorities such as the Competition and Consumer Protection Commission in Ireland).

In particular, there will be better access to the evidence needed by victims to prove the damage suffered as a result of a breach of EU competition law as well as more time to make their claims.

What are the main improvements brought about by the Directive?

The main improvements introduced by the Directive will mean that:

• Courts can order companies to disclose evidence when victims claim compensation - the courts will ensure that such disclosure orders are proportionate and that confidential information is duly protected.
   
• A final decision of a national competition authority finding an infringement will automatically constitute proof of that breach of EU competition law before courts of the same Member State in which the infringement occurred (the CCPC cannot make any such finding – only the Irish Courts can do so in Ireland).
   
• Victims will have at least one year to claim damages once an infringement decision by a competition authority has become final.
   
• If an infringement has caused price increases and these have been "passed on" along the distribution chain, those who suffered the harm in the end will be entitled to claim compensation.
   
• Consensual settlements between victims and infringing companies will be made easier by clarifying their interplay with court actions. This will allow a faster and less costly resolution of disputes.

Private damages actions before courts and public enforcement of antitrust rules by competition authorities are regarded as complementary tools. The Directive seeks to improve the interplay between them and to ensure that while victims are fully compensated, the role of competition authorities in investigating and sanctioning infringements is preserved. In particular, cooperation between companies and competition authorities under "immunity" (as in Ireland) or "leniency" programmes plays a key role in detecting breaches of EU competition law. The Directive contains safeguards designed to ensure that facilitating damages actions does not reduce companies' incentives to cooperate with competition authorities.

The current position for claimants of damages in Ireland

There have been very few reported sucessful damages claims in Ireland for breaches of competition law (e.g in 1997, Donovan v ESB led to an award of damages but this was for a breach of Irish competition law rather than EU competition law).

In Ireland, the Competition Act 2002 (as amended) provides for a mechanism for victims of a breach of an anti-competitive agreement or an abuse of dominance under Irish or EU competition law to bring an action in the Irish Courts for relief (such as damages and exemplary damages) against any undertaking which is party to such a breach or against directors, managers or other officers of such an undertaking who authorised the breach.

When can a claimant bring an action in Ireland?

Civil competition enforcement and redress in Ireland involves two distinct processes which may or may not be linked. In Ireland, the first process (public enforcement) mainly involves a case being taken by including by the Competition and Consumer Protection Commission (CCPC). These cases would be brought before the Circuit Court or the High Court where there is evidence of a breach of competition law and may result in civil sanctions (including injunctive relief or declaration of a breach of EU competition law by an undertaking. The Irish Courts may also require commitments not to continue with such behaviour). Serious anti-competitive activity such as cartels may result in criminal prosecution by the Director of Public Prosecutions before the Irish Courts. This will not.

The second process (private enforcement) is where a case is brought by an individual or business and involves a claim for damages before the Circuit Court or the High Court. There are two routes for these cases to be brought:

• follow-on cases for damages are brought a decision on a breach of competition law has been made – the advantage for the claimant is that there is a prior decision that there has been a breach of competition law; and
   
• standalone cases are brought where there has been no decision about a possible breach of competition law - to bring a standalone case, the claimant will need to prove that a breach of competition law has occurred as well as the loss suffered in order to pursue damages through the Irish courts.

Implementation of the Directive in Ireland

Some of the requirements set out by the Damages Directive already exist in Irish law. Implementing the Directive will likely involve large changes to a number of the Rules of the Superior Courts pieces of existing legislation, although these will result in only relatively minor changes to substantive law and procedures.

Among the many technical issues that the implementation of the Directive in Ireland will need to consider are:

• One system for damages actions for a breach of Irish competition law and for a breach of EU competition law or separate systems?
   
• Will the current limitation period of 6 years remain?
   
• Is a there a need for a new trigger point for limitation periods to implement the Directive correctly?
   
• Should the start of the limitation period provided for in the Directive apply from commencement of the Irish implementation instrument?
   
• How will the new rules of disclosure be worked-into the Irish system of disclosure?
   
• Will there be a passing-on defence specifically legislated for in the implementing rules?
   
• Will the implementing legislation be carried-out by way of an amendment to the Competition Act 2002 or will there be separate legislation?
   
• Will there be an explicitly provision for joint and several liability, as well as exemptions for parties with immunity under the Immunity Programme?
   
• Will the consensual dispute resolution mechanism require specific implementation?

Summary

The purpose of the Directive is to make damages actions simpler and more effective. The method of implementation of the Directive and the outstanding questions are key in this regard as is the need for the development of a culture of private enforcement in Ireland of competition law breaches.

For further information please contact Alan McCarthy or your usual A&L Goodbody EU, Competition & Procurement contact.

Date published: 10th May 2016