On 19 May 2016, the Government gave a Government Proposal (HE 83/2016 vp) to Parliament proposing an Act on Actions for Damages on the Basis of an Infringement of Competition Law and an Act on Amending the Competition Act, by which the EU directive on antitrust damages actions will be implemented.
A working group appointed by the Ministry of Employment and the Economy published a report proposing amendments to legislation last year (see News bulletin on 3 July 2015).
As opposed to the report, the Government Proposal did not include a proposition on economic succession of liability for damage. As such, the proposed act does not include provisions stipulating, for example, that in a transfer of business, the purchaser would also be obligated to pay damages caused by the target of the acquisition in the period preceding the transaction if the purchaser was aware or should have been aware of the infringement. Economic succession of liability for damage, thus, be governed by legal praxis.
Otherwise the Government Proposal’s contents mainly correspond to the report. The Government Proposal includes provisions on, among other things, presumption of harm for cartels, burden of proof for passing on overcharges and on the impact of leniency on limitation of joint and several liability and recourse liability. In addition, the proposed act would regulate the impact of an infringement decision on damages actions, interest, presenting evidence, the impact of settlement on actions for damages and limitation periods.
In the Government Proposal, the burden of proof is reversed with respect to cartels; a cartel is expected to have caused damage, unless otherwise proven by the party to the infringement. The presumption of harm would only apply to cartels and, for example, in cases concerning the abuse of a dominant position, the plaintiff must prove that the restriction of competition has caused damage.
The proposed limitation period in the Government Proposal is five years from the date when a claimant has become aware, or should have become aware, of the infringement, the damage and the party responsible. The five year limitation period is, however, suspended for the duration of an investigation by the competition authorities, until one year has elapsed from the issuance of a binding decision, as well as for the duration of settlement negotiations. The right to damages does not, however, become time-barred if proceedings are brought within one year from the issuance of a binding decision or within ten years from the day of infringement of competition law or the end of a continued infringement. The party suffering damage may invoke the longest limitation period. Interruption of the limitation period must in all cases be done by instituting proceedings.
The amendments to the Competition Act only concern additions of terms due to the proposed Act on Actions for Damages on the basis of an infringement of competition law.
The acts are to enter into force on 26 December 2016.
The Government Proposal can be read here (only in Finnish and Swedish).