The amendment of the Slovenian Competition Act implementing the Damages Directive entered into force on 20 May 2017, and provides for a number of new substantive and procedural rules aimed at facilitating damages actions brought by injured parties against undertakings infringing EU or Slovenian competition law.
Changes include prolonged limitation periods, exemptions from joint liability for SMEs, undertakings being granted immunity from fines, discretionary right of the court to determine the amount of harm, solutions for dealing with passing-on of overcharges and similar.
One of the most important changes concerns the disclosure of evidence, where the Slovenian legislator opted to provide claimants with a right to file a separate claim requesting disclosure. The claimants, however, may still decide to request an "ordinary" disclosure in accordance with the existing procedural rules. The court will only order a disclosure if certain conditions are fulfilled, in order to prevent "fishing expeditions" and to protect privileged communication (e.g. leniency statements or settlement submissions). The court can impose monetary fines of up to EUR 50,000 for actions contrary to a disclosure order.
Finally, the amendment introduced a rebuttable presumption that cartels cause harm. Contrary to the general liability rules, claimants do not need to prove the existence of harm. However, this presumption raises several questions. Firstly, the practical value of the presumption is questionable as the claimants will still indirectly need to prove the existence of harm when proving the amount of harm. Secondly, it is unclear whether the presumption a priori establishes the causal relationship between the cartel and the harm. In connection to the latter, the Damages Directive expressly left this issue to be dealt with by Member States, which are required to observe the principles of effectiveness and equivalence. Thus it will be interesting to see what approach the Slovenian courts will adopt when deciding on future damages claims.