Can a defendant seek contribution or indemnity from other defendants? On what basis is liability allocated between defendants?
Yes. If the claimant’s loss was caused by infringements of competition law by multiple infringers, an infringer who is held liable for the loss can seek contribution from the other infringers. Each defendant must contribute in proportion to the gravity of the contribution of its own fault to the causation of the loss (see above, question 4, for further details).
The claimant can choose to bring the claim against all co-conspirators or just one or more of them, since wrongdoing related to cartel gives rise to joint and several liability.
As mentioned above, if two or more defendants jointly commit an infringement that causes others to suffer damages, they shall bear the liabilities jointly and severally. The amount of damages for which the defendants should be jointly and severally liable shall be determined pursuant to their respective degree of responsibility. If it is impossible to allocate the liability for damages among the defendants, the defendants shall evenly bear the liability. If a defendant pays more than its share of the damages, it is entitled to seek contribution from the other defendants. The rightful amount for each defendant is determined based on their role, degree of fault in the monopolistic practice as well as contribution to the damages. However, it remains unclear how the PRC courts will allocate liability among the defendants.
Yes, a defendant may seek contribution from another defendant to the action the amount of which is determined taking into account their relative responsibility for the harm caused by the infringement of competition law based on the evidence presented before the competent Court.
A defendant may pass on or share liability by claiming against another defendant to the action due to a claim that they are entitled to contribution/indemnity and/or relief/remedy relating to or in connection with the matters raised by the claimant and a relief/remedy that is substantially the same as a relief or remedy claimed by the claimant or in the instance where a question arises between the defendant and the other defendant, which is connected with, and substantially the same as, the issue between the claimant and the defendant.
In the context of civil and commercial litigation, a joinder is only possible when the contract or the law provides so. If no contractual or legal basis, then the defendant cannot seek contribution or indemnity from other defendants.
An infringer which has compensated victims may recover a contribution from any other infringer, the amount of which shall be determined in the light of their relative responsibility for the harm caused by the infringement of competition law (article L. 481-9 FCC, introduced into French law as part of the implementation of the Damages Directive).
The amount of contribution of an immunity recipient shall, in principle, not exceed the amount of damage caused to its own direct or indirect purchasers or providers (article L. 481-12 FCC) (see above the answers to Questions 4 and 16).
These provisions are only applicable to damages claims based on infringement of competition law that occurred after 11 March 2017.
Until the implementation of the EU Damages Directive, there were no specific rules on joint and several liability of cartel members, yet the legal situation did not change with the 9th Amendment to the GWB: Regarding claims that have arisen until 26 December 2016, joint and several liability was recognized pursuant to the general rules in sections 830, 840 and 421 BGB. Thus, each cartelist may be held responsible for the whole damage caused by the competition law infringement.
At the same time, it was generally accepted that he can take recourse against the other cartelists pursuant to Section 426 BGB. Under this provision, the joint and several debtors are obliged in equal proportions in relation to one another “unless otherwise determined”. When deciding whether there is another determination, the courts need to assess all circumstances of the individual case, in particular: (i) the level and nature of contribution to the illegal conduct, (ii) the level of fault in relation to the illegal conduct, (iii) the profits and other benefits derived from the cartel arrangements, (iv) the economic capacity of the companies involved and (v) the amount of sales affected by the cartel, as has been held by the BGH in relation to recourse claims concerning the internal allocation of an EU fine (decision of 18 November 2014, case ref KZR 15/12 – Calcium Carbide II).
With the exception of benefits for the immunity recipient (see question 16) and small and medium-sized enterprises (SMEs), Section 33d GWB now explicitly provides for these rules with regard to claims that have arisen after 26 December 2016. Regarding SMEs, the legislator has implemented some alleviations in section 33d paras 3 to 5 GWB, for instance, subject to further conditions, holding them liable only towards their own direct or indirect customers and limiting their internal liability towards other cartelists to damage suffered by their own direct or indirect customers.
A defendant is not prohibited from seeking contribution or indemnity from other defendants under the Competition Ordinance in respect of competition damages actions.
As at the time of writing, the approach for assessing loss in competition damages cases have yet to be determined in Hong Kong. If the same principles in civil proceedings in Hong Kong were to apply, it can be expected that the principles for allocating liability between defendants in Hong Kong civil proceedings would apply to competition damages cases. The Competition Tribunal may also draw reference from analogous principles in overseas competition damages cases in allocating liability between defendants.
The Competition Law allows “converting” infringements into a civil wrong under the Tort Ordinance [New Version]. The Israeli courts' approach is that the doctrines stipulated by the Tort Ordinance also apply in cases where the civil wrong is not originally from the Torts Ordinance, rather in other legislation (such as the Competition Law). Therefore, the doctrines stipulated by the Tort Ordinance are applied in cases of competition damages litigation.
According to the Tort Ordinance, any civil wrong doer is liable in respect of the damage, may recover contribution from any other civil wrong doer which is also liable in respect of the same damage, or would be liable if sued.
The amount of the contribution recoverable will be as may be found by the court to be just and equitable having regard to that person’s responsibility for the damage. The Court will have the authority to exempt from liability to make contribution, or to order that the contribution to be recovered from any person will amount to a complete indemnity.
In addition, in any civil litigation, the defendant has the right to deliver third party notice, without the court’s permission, to any other person including other litigants (e.g., other defendants), in a claim that he is entitled to contribution or participation in contribution from the third party in respect of the damage which will be ruled by the court, or in a claim that he is entitled from the third party to the same remedy which is requested by the plaintiff.
If the court ruled against the defendant, the defendant will be entitled to contribution or indemnity from the third party. However, if the lawsuit was denied, the third-party notice will be denied as well. The court has the authority to decide whether to judge in the third-party notice during or after the main proceedings.
See Question 4.
Under Dutch law, for joint and severally liable parties the levels of contribution between them is in principle based on (i) the extent to which the circumstances attributable to each party contributed to/caused the damage but (ii) can be adjusted if the outcome is not deemed reasonable.
The assessment very much depends on the circumstances of the case and there are no known precedents on the allocation of liability for cartel damages in the Dutch courts. As such it is hard to predict which circumstances the court will take into account, but for example aspects such as market shares, relative profits, direct sales to the claimants, the role of a party in the organisation and operation of the cartel agreements, the fact that a party received a greater benefit than the other parties and the extent to which a party contributed to the establishment of the cartel may be relevant. In the Dutch courts, the fall-back position if it cannot be established to which extent various events and circumstances led to the damages, is that the share of liability is allocated based on equal parts.
The rules for contribution for defendants who received immunity with respect to fines for a competition infringement and for defendants who entered into a settlement agreement deviate from this general contribution obligation, article 6:193n DCC.
Contribution and/or indemnification claims can be brought both in the context of the main proceedings on the basis of article 210 DCCP and in proceedings between defendants after a judgment or settlement in the principal claim has been reached.
In the absence of case law at this time, and based on general civil cases in the Philippines, cartel participants may arguably be treated as joint tortfeasors, whose liability may be considered joint and several. Each of the defendants will be liable for the entire obligation, and each of the plaintiffs is entitled to demand the satisfaction of the whole obligation from any or all of the defendants. The defendant who paid the entire claim may claim from his co-defendants the share which corresponds to each. The entire claim will be divided equally among the co-defendants for purposes of computing each co-defendant's share.
 - Civil Code, Article 2194.
 - AFPRSBS v. Sanvictores, GR No. 207586, 17 August 2016.
 - Article 1217, Civil Code.
 - Article 1208, Civil Code.
If more than one person is liable for a competition law infringement they are jointly and severally liable for the damage caused by joint infringement. The claimant can claim compensation in full from any of the co-infringers.
However, if the damage resulted from an act by several persons, a person who repaired it may then seek from the other persons responsible an indemnity in an appropriate part, depending on the circumstances of the case, in particular on the fault of the person concerned and the extent to which he or she contributed to the damage.
Liability is allocated between defendants considering their contribution to the occurrence of the damages, which is presumed to correspond to the average of their market share in the markets affected by the infringement of competition law, unless if it is proved that the role taken by each of the defendants in the infringement was not identical.
The defendant may file a contribution claim against other infringing parties.
Against the claimant, all infringing parties are jointly and severally responsible (with the exception of the party that used the leniency programme). However, between infringing parties, liability is allocated based on the actual participation held in the damages caused.
If a company has paid more than its share of the damages, that company has the right to be compensated from one or several of the other infringers up to the amount representing the infringer's part of the damage.
When all defendants in the case share joint and several liability, each defendant is liable amongst themselves to the extent of their specific responsibility; however, all defendants are fully liable to claimant(s) for the totality of damages. Hence, the damaged party may file the competition damages lawsuit against any defendant regardless of their share of liability. A defendant may seek indemnity or contribution from the other defendant(s) in a separate lawsuit, namely through a recourse action.
The CCA does not provide a mechanism for a defendant to seek contribution or indemnity from other defendants in private actions for damages.
If there are several contraveners, each will be liable jointly and severally for the claimant's loss (see question 4). The Federal Court also has jurisdiction to make orders for equitable contribution.
This remains an open question. Given this uncertainty, most settlements of competition class actions contain “bar orders” prohibiting non-settling defendants from bringing contribution claims against the settling defendants, and correspondingly limiting the plaintiffs’ claims against the non-settling defendants.
In the case of many defendants in a competition damages claim each of them can request the court to:
- be indemnified and held harmless by the other co-defendants or third parties summoned in the proceedings;
- asses the individual share of liability with respect to the disputed anticompetitive conduct; and
- order the compensation of damages accordingly.
The allocation of liability by the court will be based on the general civil liability principles. This means that the court will evaluate - possibly with the assistance of an expert - the degree of actual contribution of each defendant to the anticompetitive conduct.
If this is not possible, the liability will be split equally.
The undertakings which have infringed competition law through joint behaviour are jointly and severally liable for the harm caused by such infringement
An infringer having compensated the full prejudice may in its turn recover from the other participants their corresponding share of the prejudice; the concrete amounts shall be determined in the light of their relative responsibility for the harm caused by the infringement (,i>see also question 4).
In determining the amount a co-infringer may recover from the other participants to the infringement, account shall be taken of the damages already paid by such co-infringer via alternative dispute resolution means.
English civil law grants defendants a general right to seek contribution from any other defendant (or third party) which is liable for the same damage. The contribution of any one party may be up to 100% of the damages awarded; the proportion is based on a flexible test of what is ‘just and equitable’ based on the evidence.
The implementation of the Damages Directive amends this general position for competition claims on or after 9 March 2017 in three principal ways: (i) if one defendant settles, the other defendants cannot seek a contribution from the settling defendant; (ii) defendants which have received immunity have a partial exemption (see question 16 above); and (iii) the “just and equitable” test is replaced with an assessment of the “relative responsibility for the whole of the loss or damage caused by the infringement”.
For both individual and collective actions, there are two mechanisms to seek indemnity or contribution from third parties:
- Impleader (Llamamiento en garantía): It allows the defendant to joint to the claim procedure a third party that might be liable for the compensation of the damage caused.
- Cross claim (Demanda de coparte): It allows a member of a joinder to submit a claim against other members of such joinder for the contribution or indemnity for the damages claim.
In both events, the judge of the initial claim will solve the additional claim once it concludes that the defendant is liable and shall indemnify the plaintiff.
As mentioned above, the defendants will only be liable if there is evidence that they were direct and certainly accountable of the damages. In several cases, there might be a joint and several liability between the parties, such as when the damage was caused by an anti-competitive agreement, in which case all the parties of the agreement are usually considered accountable and therefore, they will be jointly liable for the compensation.
Courts have applied the tort doctrine of joint and several liability in antitrust actions as a method of deterrence. In order to maximise deterrence, courts have denied a right of contribution in competition litigation. In Texas Industries v Radcliff Materials, Inc, the Supreme Court unanimously held that an antitrust defendant has no right of contribution from co-defendants and that federal courts ‘are not empowered to fashion a federal common-law rule of contribution among antitrust wrongdoers’ 451 US 630 .