On 11th March, 2016, the Anti-monopoly Office submitted a bill on compensation of damage in the area of economic competition and on an amendment of Act No. 143/2001 Coll. on the protection of economic competition and on the amending of some laws (the Anti-monopoly Act), as amended (the “Bill”).
The Bill transposes EU Directive No. 2014/104/EU into Czech law with the objective of introducing an amendment that would allow the effective claiming of damages caused by a breach of competition rules. According to the explanatory memorandum, the Civil Code regulates the banning of economic competition in the context of obligations arising from misdemeanors (including a list of individual facts of a crime) in the same way as it regulates compensation of damage in cases of the stifling of economic competition (§ 2988 of the Civil Code); nonetheless, this is not (in particular, terminologically) tied to the Anti-Monopoly Act, and jurisdiction in respect of violations of EU law is not addressed. The Bill is also meant to ensure private-law enforcement of the rules of economic competition, in particular so that any natural person or legal entity can sue for compensation of damage caused by anti-competitive behavior.
In order to achieve this goal, the Bill’s submitter proposes:
- To regulate the taking of evidence in a special manner so that:
- in the case of prohibited horizontal agreements, the defendant is obliged to prove that damage was not caused; and
- in the case of an indirect customer, its position as claimant is simplified, where the Bill stipulates conditions for transferring the burden of proof to the defendant (direct customer). Here, burden of proof means proving a price increase was not passed on to the indirect customer.
- To set a special limitation period to exercise the right to compensation of damage under the Bill to five years, where such period shall not begin until the stifling of economic competition ceases. A limitation period that is interrupted shall not end sooner than one year after its resumption.
- An anti-monopoly authority’s (Anti-monopoly Office) obligation to submit evidence in its file (with the exception of petitions for abatement or reduction of a fine and related documents). However, evidence may only be submitted to the court once an investigation or administrative proceeding has ended.
- To make relevant to the Anti-monopoly Act as regards the inspection and availability of information in the Antimonopoly Office file.
The Bill expressly establishes the specific character of the Civil Code and the Civil Procedure Code.
Finally, the Bill regulates the possibility of a lesser obligation to compensate damage only in the case of compensation of damage caused to direct and indirect customers that are small and medium-sized enterprises and where the infringer has been exempted from the imposition of a fine.
The Bill is currently in a comment procedure and its proposed effective date is 27th December, 2016.