A draft law (the “Draft Antitrust Damages Law” or the “Draft Law”) implementing EU Antitrust Damages Directive 2014/104/EU (the “Antitrust Damages Directive”) was submitted to the Greek Parliament and is expected to be voted in March 2018. The proposed law will have retroactive effect: Its substantive provisions will apply from 27 December 2016 while its procedural provisions will apply to actions for damages filed from 26.12.2014 onwards.
The proposed law will apply to stand-alone or follow-on actions for damages for infringements of EU and/or Greek competition law. It will, therefore, apply also to purely domestic cases.
Right to full compensation
The right to full compensation was already one of the basic principles of Greek damages law. The Draft Antitrust Damages Law reiterates this principle by providing that full compensation includes actual damage, loss of profit and interest from the time when the harm occurred until the time when compensation is paid.
Burden of proof
The general rule of Greek law is that plaintiff bears the burden to prove the elements forming the basis of his claim. In line therewith, in an action for damages due to infringement of competition law the plaintiff must prove: (a) infringement of competition law, (b) infringer’s fault (intention or negligence), (c) damage and (d) causal link between the infringement and the damage suffered.
The Draft Antitrust Damages Law contains provisions facilitating the effective exercise of the right to full compensation for harm resulting from infringements of competition law, these being, among others, the following:
Effect of infringement decisions
Decisions of the Greek and EU Competition Authorities finding an infringement of Greek and/or EU competition law, which are not subject to appeal, as well as final decisions of the competent Greek and EU review Courts are binding before a Greek Court trying an action for damages.
Final decisions issued in other Member States finding an infringement of EU competition law and/or national competition law, which is applicable in parallel and pursues the same object with EU competition law, constitute full evidence of the infringement before a Greek Court trying an action for damages. However, such evidence may be rebutted through counter-evidence.
According to the Explanatory Report to the Draft Antitrust Damages Law, the above binding effect covers the nature of the infringement and its material, personal, temporal and territorial scope, as determined in the relevant decision.
Under Greek law there is no discovery as a matter of course, each party bearing the burden to produce the evidence necessary to substantiate its claims. Under certain conditions, a Court could order the production of documents, provided, among others, that these were sufficiently specified in the relevant request. However, such Court orders were not frequent. Therefore, the disclosure regime introduced by the Draft Antitrust Damages Law is one of the most significant changes.
At the request of either party in proceedings related to an action for damages, the Court may order the other party or a third party to disclose relevant evidence which lies in that party’s control. The relevant request must be reasoned and the disclosure of evidence is limited to what it is proportionate taking account of the legitimate interests of all parties and third parties concerned. A novelty introduced by the Draft Antitrust Damages Law is that the party requesting disclosure does not need to specify the individual item of evidence, it being sufficient to indicate categories of evidence, as precisely and as narrowly as possible on the basis of reasonably available facts. The evidence disclosed is not immediately available to the requesting party. It is first submitted to the Court which must take all necessary measures to ensure protection of confidential information. Among others, the Court may instruct Court appointed experts to produce a summary of the information in an aggregated or otherwise non-confidential version. The Court must give full effect to legal professional privilege under EU or Greek law, whichever standard is higher. In the event in which a party fails to comply with the disclosure order, the requesting party’s allegations related to the object of the disclosure are presumed to have been proven. In addition, the Court may impose fines ranging from 50.000 to 100.000 Euros.
The Draft Antitrust Damages Law sets out additional conditions for the disclosure of evidence included in the file of a competition authority, in line with the Antitrust Damages Directive. In brief, the Draft Law follows the distinction between (a) white list evidence which exists independently of the proceedings of a competition authority (“pre-existing evidence”), (b) grey list evidence which includes information prepared in the context of such proceedings (such as a Statement of Objections or replies to information requests) and (c) black list evidence (leniency applications, settlement submissions and settlement declarations or other documents containing extracts of the above). Black list evidence obtained solely through access to the file of a competition authority is inadmissible in actions for damages. The person who has submitted such evidence is also subject to fines up to 100.000 Euros. The same rules apply with respect to grey list evidence prior to the closure of the proceedings before a competition authority. White list evidence obtained through access to the file can be used in an action for damages only by the person who has been granted access to the file or a person that succeeded to that person’s rights.
Quantification of damage
The Draft Antitrust Damages Law adopts the presumption that cartel infringements cause harm. This presumption is rebuttable. A major novelty of the Draft Law compared to the general rule of Greek law is that plaintiff is not required to produce full evidence of the damage suffered. If it is established that it is practically impossible or excessively difficult for the plaintiff to precisely quantify the harm suffered on the basis of the available evidence, the Court is empowered to estimate the likely amount of harm taking into account, in particular, the nature and scope of the infringement and plaintiff’s diligence in collecting the necessary evidence. The Court may ask for the assistance of the Greek competition authority, if it deems this to be appropriate. According to the Explanatory Report to the Draft Law, in quantifying harm the Court may take into account the relevant Commission’s Communication (2013/C 167/07) with respect to claims for damages caused by infringements of EU and national competition law.
Passing on defense
The Draft Law recognizes that the defendant can raise the passing-on defense bearing the relevant burden of proof.
In line with the Antitrust Damages Directive, the Draft Antitrust Damages Law provides that compensation can be claimed by anyone who has suffered harm, irrespective of whether he is a direct or indirect customer of the infringer. The Draft Law facilitates claims for damages by indirect customers of the infringer by providing that infringer’s direct customers are presumed to have passed on the cartel overcharge to them. Such presumption is rebuttable, the defendant bearing the burden to submit full evidence that no cartel overcharge was passed on to his indirect customers.
Joint and several liability
The Draft Antitrust Damages Law reiterates the principle of joint and several liability which was already part of Greek law. The Draft Law provides for exceptions in favor of SMEs and immunity recipients in line with the Antitrust Damages Directive.
According to the Draft Antitrust Damages Law claims for damages are time barred after 5 years from the date when the claimant knew or was reasonably expected to know the infringement of competition law, the damage and the identity of the infringer. The above limitation period does not begin to run before the cessation of the infringement. In any event, claims for damages are time barred after the lapse of 20 years from the cessation of the infringement.
The above limitation period is suspended if a competition authority takes action for the investigation of the infringement. The suspension ends 1 year after an infringement decision has become final or the proceedings are otherwise terminated. The above limitation period is also suspended for the duration of any consensual dispute resolution process.
With respect to claims for damages against a cartel participant having received immunity, which are filed by an injured party other than the direct or indirect customers of the immunity recipient, the limitation period starts running after the final dismissal of such injured party’s action for damages against the other cartel participants or after enforcement proceedings against the other cartel participants prove fruitless.
According to the Draft Antitrust Damages Law the territorial competence to hear claims for damages due to the infringement of competition law is vested for the entire Greek territory to specialized sections to be set up in the Athens First Instance Court and the Athens Appeal Court. This provision will apply to lawsuits which will be filed from 16 September 2018 onwards.