How does the court determine what law will apply to the competition damages claim? What is the applicable standard of proof?
The Belgian courts will determine the law applicable to the competition damages claim on the basis of the Rome I or Rome II Regulations (EU Regulations 593/2008 and 864/2007), or the Belgian Code of Private International Law, which is applicable to cases outside the scope of the Rome I and Rome II Regulations (for instance, for extra-contractual claims, when the facts giving rise to the damage occurred before 11 January 2009).
For extra-contractual claims for acts restricting competition, Article 6 of the Rome II Regulation provides that the applicable law is that of the country where the market is, or is likely to be, affected. However, the claimant may choose to base its claim on Belgian law if the infringer has its domicile in Belgium, provided that the Belgian market is amongst those directly and substantially affected. Where multiple infringers are simultaneously brought before the Belgian courts, the claimant can only choose to have Belgian law govern its claim if the restriction on competition which underlies the claim against each defendant directly and substantially affects the Belgian market.
For contractual claims, Article 3 of the Rome I Regulation provides that the applicable law will generally be the law stipulated in the contract by the parties. In the absence of a choice, the applicable law will differ according to the type of contract, unless it appears from the circumstances that the contract is manifestly more closely connected with a specific country, in which case the law of that country will apply.
The standard of proof under Belgian law is subjective – it allows the court to consider as proven any elements which appear true to his own conviction, meaning it must be personally convinced of their veracity. There are, however, a few limited exceptions to this rule. For instance, in competition damages claims, the court is bound to accept that an infringement has taken place where the European Commission or the Belgian Competition Authority (subject to judicial review by the General Court of the European Court of Justice and the Market Court of the Court of Appeal of Brussels, respectively) have found that there is an infringement. In addition, there is a presumption of damage in case of cartel infringements.
As a general rule, Brazilian Courts will apply Brazilian law.
The applicable standard of proof is the same as to most civil claims: preponderance of evidence, in which the proof must be clear and convincing and must lead to a conclusion that the allegations raised are more probable true than not. In this sense, the plaintiff makes the original allegations in a complaint and bears the initial burden. The defendants, by their turn, file a response denying the plaintiff’s allegations, and at this point the burden shifts to them to prove their defence.
- From the substantive law perspective, the laws applicable to competition damages claims mainly involve the AML, the GRCL, the TLL, and relevant SPC judicial interpretations such as the SPC AML Interpretation.
- From the procedural law perspective, the CPL and its corresponding SPC judicial interpretations (such as the Interpretations of the Supreme People's Court on Application of the Civil Procedural Law of the People's Republic of China (“SPC CPL Interpretation”) and the SPC AML Interpretation) shall be the governing rules for competition damages claims.
- The standards of proof applied in a civil case include “preponderance of evidence” and “clear and convincing evidence”, which should also be applicable to competition damages claims in general. But it is unclear how the courts will apply such standards in competition damages claims. Preponderance of evidence requires the plaintiff to introduce more likely evidence than the defendant. This standard is the easiest to meet. According to the Several Provisions of the Supreme People's Court on Evidence for Civil Actions (“SPC Evidence Provisions”), where the parties produce conflicting evidence on the same fact, the evidence that is more likely than the other one will prevail. The CPL also provides the “clear and convincing evidence” standard. This standard requires the plaintiff to prove that a particular fact is substantially more likely than not to be true. This standard sets a higher threshold than the preponderance of evidence standard. Pursuant to the SPC CPL Interpretation, a litigant bearing the burden of proof shall prove that there is a high probability that a particular fact is true.
- With respect to the burden of proof, an issue closely related to the standard of proof, according to the CPL, the parties to the litigation shall generally be responsible for providing evidence for their assertions or claims. Where a party or their attorney is unable to collect evidence on their own due to objective reasons, or in the case of evidence deemed by the court to be necessary for trial of case, the court shall investigate and collect the evidence. Regarding competition damages claims, to establish the civil liability of an infringer (i.e., the defendant), the plaintiff typically submits evidence to prove three elements: (i) the defendant has committed monopolistic practice; (ii) the plaintiff has suffered actual damages; and (iii) there is a causal link between the defendant’s monopolistic practice and the damages suffered by the plaintiff. If it fails to meet the burden, then the plaintiff shall undertake the unfavourable consequences. Likewise, the defendant shall bear the burden to provide evidence to prove its arguments or rebut the alleged claims.
- In addition, the SPC AML Interpretation also provides more detailed guidelines on the burden of proof. Regarding cartel cases, the defendant shall bear the burden to prove that such agreements do not have an anti-competitive effect. Regarding the abuse of dominance, the plaintiff shall bear the burden to prove that the defendant has a dominant market position and has abused such dominance, whereas the defendant bears the burden to prove the legitimacy of its activities. As for vertical monopoly agreements, although there are no specific rules on the allocation of the burden of proof, the general principle mentioned above shall apply.
The legal basis for competition damages claims derives from national and European Union legislation. Specifically in so far as competition damages are concerned, these are governed by Law 113(I)/2017 which harmonises the provisions of the EU Directive and which enacts regulations for the purposes of coordinating the implementation of the Competition Law by the CPC with the implementation of the Competition Law in damages actions brought before the District Court.
According to Article 50 of the Competition Law, if an issue and/or a practice are not specifically regulated by national legislation, the CPC and the Courts will apply EU Competition Law.
The standard of proof, as in all civil cases, is the balance of probabilities.
A) Applicable law on competition damages claim:
In order to determine the applicable law, we shall distinguish between two situations:
a) In the event where there is no foreign element in a competition damage claim, i.e. 1) the parties are Egyptians, 2) the agreement clearly provides that it is subject to the Egyptian law, and that this latter is signed and concluded in Egypt, 3) or the tort (anti-competitive practice) is committed in Egypt, in this case, Egyptian Courts shall apply the Egyptian Law.
b) In the event where there is a foreign element in the competition damages claim, and unless there is a convention directly determining the applicable law on competition damages claims, the Court shall apply the Egyptian private international rules on determining the applicable law on the dispute, which are:
a. The applicable law of the agreement (if it is clearly provided in the agreement);
b. The law of the State in which the agreement shall be executed (if the agreement does not provide an applicable law);
c. The law of the State in which the tort has been committed.
In this case, the Egyptian Court shall apply the relevant foreign law on the dispute as long as the said law does not contradict public policy in Egypt.
B) Standard of proof:
The Egyptian Law No. 25 of 1968 concerning the Proof in Civil and Commercial Matters (“PCCM”) stipulates certain standard of proof principles that the Court and the parties shall abide by. These principles include the following:
(i) The creditor (most likely the Claimant) shall bear the burden of proving obligations, while the debtor (most likely the Defendant) shall bear the burden of proving discharging the debt or the obligation.
(ii) The facts that are to be proved shall be related to the case, and shall be productive and admissible.
(iii) Official documents issued by a public servant or a person commissioned to perform a public service shall be binding vis-à-vis all people in terms of all contents recorded therein made by authors within the extent of their mandates, or signed by the concerned parties, unless they have been duly proved counterfeited.
(iv) If the original instrument exists, its authenticated copy - whether written or photographic - shall be binding to the extent of its matching to the original. A copy shall be authentic unless a party challenged it, then the copy shall be verified against the original.
(v) Where an original instrument doesn't exist, a copy shall be admitted in evidence as follows:
a. The authentic copy, whether executive or not, shall be admitted in evidence as the original, if its outer appearance doesn't create any doubt in being identical to the original.
b. The authentic copy shall be as admissible in evidence as the original document; however, in this case each party may demand verifying it against the original copy thereof.
c. Authentic copies taken from copies shall not be taken into consideration unless for the purpose of guidance only, as the case may be.
(vi) Unofficial documents shall be considered as issued by the person who signed it, unless where such a person explicitly denies that such handwriting, signature, seal, or fingerprint is attributable to him. Inheritors or successors may not be asked to deny, but it is sufficient for them to take the oath that they do not know that the handwriting, signature, seal, or fingerprint is attributable to the person from whom the right passed to the successor or inheritor.
(vii) An unofficial document shall not be an evidence vis-à-vis third parties unless when it has a fixed date. The document shall be considered to have a fixed date:
a. As of the date at which it is registered in the appropriate record.
b. As of the date at which its content is registered in another paper with a fixed date.
c. As of the date at which it is annotated by an authorized public servant.
d. As of the date of the death of a person who has a recognized trace on the paper such as a handwriting, signature, and fingerprints, or as of the date at which it became impossible for one of them to write or seal the instrument for a physical defect.
e. As of the date of the occurrence of an event that is conclusive in proving that the paper is issued before its occurrence.
The applicable law is determined by application of (i) Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligation (Rome I Regulation), or (ii) Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II Regulation).
Regarding competition damages claims relating to contractual obligations:
- The applicable law is in principle the law chosen by the parties;
- In the absence of such choice, article 4 of the Rome I Regulation provides a set of rules relating to specific contracts, aimed at determining the applicable law. For instance, a contract for the sale of goods (and thus related competition damages claims) is governed by the law of the country where the seller has its usual residence. A contract for the provision of services (and thus related competition damages claims) is governed by the law of the country where the service provider has its usual residence. If the dispute involves other types of contracts, the applicable law is the law of the country where the party required to carry out the characteristic performance of the contract has its usual residence;
- The Rome I Regulation also contains a special rule concerning consumer contracts, pursuant to which the contract between a consumer and a professional is governed by the law of the country where the consumer has his usual residence, provided that the professional (a) pursues his commercial/professional activities in the country where the consumer has his usual residence, or (b)directs such activities to that country by any means (Rome I Regulation, article 6.1). If the parties to a consumer contract have included a choice-of-law clause in their contract, such a choice must not result in depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law of his usual residence (Rome I Regulation, article 6.2).
Regarding competition damages claims related to non-contractual obligations, they are governed by French law if the French market is directly and substantially affected by the anticompetitive practice upon which the claims are based (Rome II Regulation, article 6). If the French market is not affected by the anticompetitive practice, the applicable law is the law of the country where the market is or is likely to be affected.
In general, French courts set aside the law determined by application of the above conflict of law rules when the concrete application of that law is contrary to French public policy.
Applicable standard of proof
The claimant must cumulatively demonstrate the existence of a wrongful act (i.e. in competition damages claims, a competition law infringement), the damage suffered and the causal link between the wrongful act and the damage suffered (see above the answer to Question 2).
As a principle, any type of evidence is admissible to establish the existence of the above three conditions. However, in practice, the parties base their claim on written documentary evidence without resorting to oral evidence (see below the answer to Question 14). In particular, the parties submit economic expert reports to substantiate their alleged loss and its amount (see the answers to Questions 4 and 17).
The FCC sets out a series of evidential presumptions that facilitates the claimant’s burden of proof in competition law damages cases, and thus its compensation.
First, regarding the proof of the competition law infringement, article L. 481-2 of the FCC specifies the evidentiary value of competition authorities’ decisions:
- An anticompetitive practice that is established by a final decision of the FCA or the Paris Court of Appeal is deemed to be irrefutably established for the purposes of follow-on competition damages claims. This is the case when the facts constituting the infringement can no longer be appealed through ordinary means (which excludes appeals before the Supreme Court (Cour de cassation));
- Likewise, the court hearing a competition damage claim cannot render a decision running counter to a final decision of the Commission finding an infringement of article 101 or 102 TFEU (see also article 16(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in articles 81 and 82 of the Treaty [now articles 101 and 102 TFEU] (Regulation 1/2003)); and
- Final decisions of other Member States’ competition authorities or appeal courts establishing an anticompetitive practice constitute a means of proof of that anticompetitive practice for the purposes of related competition damages claims brought before a French court.
Secondly, article L. 481-7 of the FCC provides for a refutable presumption of the alleged harm and of the causal link between this harm and the competition law infringement in cartel-related damages actions.
These provisions are only applicable to damages claims based on infringements of competition law that occurred after 11 March 2017.
However, lower courts have already applied the above presumption establishing the existence of a competition law infringement on the sole basis of a prior infringement decision of the FCA. Contrary to the previous case law of the Cour de cassation, these courts considered that the establishment by the FCA of an anticompetitive practice automatically demonstrated the existence of a wrongful act for the purposes of a competition damages claim (see e.g. Versailles Court of Appeal, judgment of 24 June 2004, Vérimédia, No. 02/07434).
Since entry into force of the Rome II Regulation on 11 January 2009, the law applicable to competition damage claims is the law of the State where the market is, or is likely to be, affected. If the market is affected in more than one country, the claimant may opt to base its claim on the law of the court seized if (i) he has brought his claim before the courts of the state where the defendant is domiciled and (ii) the market in that EU member state is affected as well (Article 6 para 3 Rome II Regulation).
Outside of the scope of the Rome II Regulation, the applicable law is determined pursuant to section 185 para 2 GWB (current version) or by section 130 para 2 GWB (version as of 13 July 2005). Each is a mandatory conflict of laws rule and precedes over any other of the general conflict of laws rules. Pursuant to this stipulation, German law is applicable to all restraints having an effect within the scope of the GWB, irrespective of whether the infringement was initiated outside of Germany.
With respect to claims that arose prior to 13 July 2005, Article 40 para 1 sentence 1 EGBGB specifies that tort claims are governed by the law of the country in which the liable party has acted. Yet, the injured party can demand that instead of this law, the law of the country in which the injury occurred is to be applied; in cartel damage cases, this is the law of the state where the market is affected by the competition law infringement. The option can be used only in the first instance court until the conclusion of the pretrial hearing or until the end of the written preliminary procedure.
Standard of proof
As a general principle, the claimant bears the burden of proof for all beneficial elements of a claim, ie those that establish his claim, whereas the defendant bears the burden of proof for all those elements which destroy and impede the claim. Sections 286 and 287 ZPO contain the basic rules addressing the standard of proof:
- Section 286 ZPO stipulates that the evaluation of evidence is at the court’s discretion (freie Beweiswürdigung). It provides for the so-called full proof (Vollbeweis), meaning all elements need to be shown to the extent of full judicial conviction. Pursuant to the established case law by the BGH, this requires a degree of certainty suitable for practical life, which puts a stop to doubts, yet without necessarily excluding them completely. Section 286 ZPO applies to all circumstances giving rise to the claim, unless the court is bound by law to take certain facts as given, either because of findings of competition authorities (see below question 9) or because alleged facts have not (sufficiently) been disputed by the opposing party (cf section 138 para 3 ZPO).
- Section 287 ZPO reduces the requirements relating to the burden of proof and to the conviction of the judge with respect to damage occurrence and the extent of damage. It is sufficient if the harmed party shows and proves facts which offer sufficient indication for the court’s assessment. A considerable amount of probability based on a secure basis is sufficient for a court to form its conviction. The provision applies as well to other cases if the amount of a claim is in dispute and clarification of circumstances entails difficulties that are disproportionate to the significance of the disputed portion of the claim.
Moreover, there are several alleviations of the burden of proof. In its current version, the GWB provides for the following alleviations that are applicable to claims having arisen after 26 December 2016:
- Section 33a para 2 sentence 1 GWB contains a rebuttable presumption that a cartel causes damage.
- Section 33b GWB provides for a binding effect of the competent competition authority’s decision concerning the existence and scope of the cartel infringement (see also below question 9).
- Section 33c para 2 GWB stipulates the presumption in favour of an indirect customer that the price overcharge has been passed on to him if (i) there is a cartel infringement within the meaning of section 1 or 19 GWB or Article 101 or 102 TFEU, (ii) the infringement causes a price increase for the direct customer and (iii) the direct customer has acquired goods or services that were affected by the cartel infringement.
- Section 33g GWB provides for information and disclosure requests that a party may file in order to obtain information needed for the cartel damage claim (see also Question 21). To make use of these rights, the requesting party only needs to credibly demonstrate (“glaubhaft machen”) to the satisfaction of the court that it has such a damage claim.
For claims that arose until 26 December 2016, Section 33 para 4 GWB provides for a binding effect of the competent competition authority’s decision concerning the existence and scope of the cartel infringement. In addition, the instance courts accepted for a long time prima facie evidence in favour of the claimant regarding the questions whether (i) the cartel led to higher prices in general and (ii) the individual transactions with the direct customers in question were affected by the cartel agreements. With decision of 11 December 2018 (case ref KZR 26/17 – Railway Tracks) the BGH rejected this jurisprudence and ruled that cartel claims do not benefit from a prima facie presumption regarding price and quota cartels as well as customer protection agreements regarding both questions. Instead, the courts must assume a high likelihood that (i) the cartel led to an increased price and (ii) the individual transactions were affected by the cartel.
Follow-on actions in Hong Kong can only be based on section 110 of the Competition Ordinance. As such, Hong Kong law will apply to the competition damages claim.
Although there has been no precedent of a competition damages claim in Hong Kong, it is expected that the ordinary civil standard of proof, i.e. a balance of probabilities, would apply to competition damages claim in Hong Kong.
In Israel, the courts are subject to a single set of laws, and there is no separation between districts.
In general, in civil cases, the burden of proof rests with the plaintiff, and the degree of proof required is a balance of probability. The burden of proof imposed on the plaintiff relates to the definition of the market; the existence of a restrictive arrangement or harm to competition or any act on which the claim is based; and the alleged damage.
In cases in which the action is brought as a class action, in order to certify a request for a class action, the burden of evidence is reduced, and a prima facie threshold is required in order to obtain the court's approval for the management of the claim through a class action.
For both Type A and Type B claims, if the claim is obviously closely connected to a certain place, the law of such place shall apply (Article 20 of the Act on General Rules for Application of Laws (“AGRAL”). Otherwise, in principle, the applicable law shall be that of the place where the result of the infringement of the AMA occurred. If the occurrence of the result at that place was ordinarily unforeseeable, the law of the place where the act of infringement was committed shall govern (Article 17 of AGRAL).
Standard of proof
As in other types of civil litigation, a high probability is the standard of proof for competition damages claims, where the causes of action needs to be proven to the extent that an average person would not have doubt.
For events giving rise to damages occurred after 11 January 2009 the Rome II Regulation applies to determine which law is applicable to the claims. Article 6(3) Rome II Regulation provides that the law applicable to claims in relation to restriction of competition shall be the law of the country where the market is or is likely to be affected. If the market is likely to be affected in more than one country, a claimant suing in the court of the country in which the defendant is domiciled may choose to base its claim on the law of that court, provided that the market in that country is directly and substantively affected. Article 6(2) Rome II Regulation provides that where an act of unfair competition affects exclusively the interests of a specific competitor, Article 4 Rome II Regulation shall apply.
In respect of infringements that occurred before 11 January 2009, the Dutch courts will apply the Wet conflictenrecht onrechtmatige daad (Conflict Law on Wrongful Acts (WCOD)). Article 4 of this act provides that competition damages are governed by the law of the country in which the competition was impaired.
The burden of proof with regard to alleged facts supporting the existence of a claim is in principle borne by the claimant, as follows from article 150 DCCP. The claimant will, therefore, need to substantiate its claims and arguments in the writ of summons. See above under 2 for the standard thereof. The claimant has to prove that a tortuous act occurred (i.e. a breach of competition law, the existence damages and causal link between the wrongful act and the damage suffered). However, in the case a competition authority has established a competition law infringement in a decision which is no longer subject to appeal the wrongful act has - in principle - been established. In addition, following the implementation of the Cartel Damages Directive, a competition law infringement is presumed to have caused damage (article 6:193l DCC). This (rebuttable) evidentiary presumption means that the infringing party will have to prove that no damage was caused by the infringement.
Actions brought under Section 45 of PCA will be decided based on the relevant provisions of the PCA and the general procedural law (i.e., the Rules of Court). The relevant provisions of the Civil Code on damages would also apply.
The burden of proof for Section 45 civil actions is the same as in civil actions — the claimant bears the burden of proving his case by a preponderance of evidence. Section 45 of the PCA implies that a claimant must show that there was an infringement of the applicable provisions of the PCA, and that he suffered actual loss as a result of the infringement.
In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility as far as the same may legitimately impact upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.
 - Id., Rule 133, section 1.
The general rules on conflict of laws apply to competition damages claims. Pursuant to the Rome II Regulation the law applicable to a non-contractual obligation arising out of an act restricting competition shall be the law of the country where competitive relations are, or are likely to be, affected. Thus, the Polish Competition Act may apply to the infringements that had impact on competition in Poland, regardless of place where the infringement took place or the registered office of the undertaking that committed the infringement.
The rules on the competition damages claims set out in the Polish Private Enforcement Act apply to infringements that occurred after 27 June 2017. There is however an exception concerning some of the procedural provisions of this act as those apply to all competition damages cases that were commenced after 27 June 2017.
With regard to the standard of proof, the general rule of the Polish civil law is that the burden of proof relating to a fact shall rest on the entity who attributes the legal effects to that fact, except in the case of rebuttable presumptions, where the reversed burden of proof lies with the defendant.
Competition damages claims in Poland are founded on the principle of the culpability of the infringer of the competition law. For an infringer to be found liable his/her behaviour must be illegal, i.e. infringing competition law. The illegal behaviour is understood objectively as conduct infringing Article 101 and 102 TFEU and/or Article 6 and 9 of the Polish Competition Act. In order to be held liable, a defendant must be at fault. The infringer’s wrongdoing must result in the claimant’s damage. Finally, there must be adequate causal link between the defendant’s wrongdoing and the damage.
The Polish Private Enforcement Act provides for a number of procedural instruments that are aimed to facilitate pursuing competition damage claims. First, there is a statutory (rebuttable) presumption foreseen by the Polish Private Enforcement Act that the undertaking infringing competition law is at fault and it is for the defendant to rebut this presumption. Also, there are several novelties introduced by the Polish Private Enforcement Act concerning the concept of damage and the associated burden of proof. There is a statutory presumption that a competition law infringement results in damage. It is also presumed that excessive burden has been passed on to the indirect purchaser, if an infringement of competition law has resulted in an excessive burden on the direct purchaser, and the indirect purchaser has acquired the products affected by the infringement. With regard to the competition law infringements that occurred before 27 June 2017, but where a competition damages case is instigated after 27 June 2017, the general tort liability rules apply, with some modifications as per procedural provisions of the Polish Private Enforcement Act, mainly the rules for disclosure which will be applicable. Therefore, in such cases, other aforementioned procedural facilitations will not apply. As a result, the burden of proof rests upon the claimant who must prove that the defendant is at fault, the infringer’s wrongdoing resulted in the claimant’s damage and that there is an adequate causal link between the damage and the defendant’s wrongdoing, based on general rules of the tort liability under the Polish civil law.
According to Regulation (EC) No 864/2007 (Regulation Rome II), that defines the law applicable to non-contractual obligations, the law of the country in which the damages occur is applicable. However, if the claimant and defendant both have their residence in the same country at the time when the damage occurs, the law of that country shall be applicable. Nonetheless, if it is clear from all the circumstances of the case that the matter is manifestly more closely connected to another country, the law of that country shall be applicable.
Nevertheless, the applicable procedural law is the law of the country where the proceedings should be filed. Therefore, in case the Portuguese courts are competent, the standard of proof required is a “balance of probabilities”, whereby the judge has the freedom to decide according to his prudent assessment, unless a legal assumption is provided, or a certain type of evidence is required for certain facts to be considered proved.
The court will determine what law is applicable by applying Argentine private international law.
The standard of proof will be analysed on a case by case basis. Besides, if a final and binding sanctioning resolution stating that there has been an infringement to the Competition Law is issued, such resolution has the force of res judicata and it is mandatory in the damages claim to prove the facts.
If there is no resolution confirming the Competition Law infringement, the claimant must provide evidence of the alleged infringement.
In both cases, the complainant must prove the factual relationship between the damages and the infringement invoked.
The claimant must prove the facts, using evidence from the following sources: documents, experts (who can be cross examined at trial), witnesses (who can be compelled to attendance at hearing, and can be cross-examined at trial), rogatory letters, any other kind of evidence that the court considers appropriate, including evidence from criminal proceedings.
No rebuttable presumptions exist to shift the burden of proof.
As regards the choice of law, in cases involving companies from within the EU, Swedish courts will apply the Rome I Regulation Articles 4–8 to cases where the parties have a contractual relationship and the Rome II Regulation where the claim regards indirect damages, that is, Article 4.1 (the law of the country where the damages arose), Article 6.3 (where markets have been affected or are likely to be affected) or, where competition in several countries has been or is likely to have been affected, Swedish law, if a market in Sweden has been directly and substantially affected.
Swedish case law has adopted principles giving injured parties’ a significant easing on the burden of proof in situations when proffering precisely specified items of supporting evidence is particularly difficult or can unduly impede the effective exercise of the right to compensation guaranteed by the TFEU. To remedy the information asymmetry, the Competition Damages Act also includes a presumption that cartel infringements have caused damage. The presumption stands unless it is rebutted. It should be noted that the presumption only applies to the existence, and not the extent, of the damage.
Under International Private Law, claims regarding the infringement of competition law are subject to the law of the state of the market directly affected by the infringement. Therefore, all infringements directly affecting the Turkish market are subject to Turkish law, even if infringements originate in a third country. Similarly, claims can be brought against undertakings from other jurisdictions under Turkish law and in Turkish courts, provided the infringement directly affects Turkey.
In regard to standard of proof, private damages actions based on competition law violations are subject to the general standard for private tort actions. In civil litigation, claimants bear the burden of proof for all of the relevant facts of the case. In particular, claimants must prove that all of the mandatory elements of a tortious act existed in a given case, i.e. (i) the defendant committed an unlawful action; (ii) intent or negligence on the part or the defendant; and (iii) harm and causation between the unlawful action and the harm to the plaintiff. The Competition Act further states that claimants can prove the existence of agreements, decisions and practices restricting competition with “all types of evidence”.
From a practical perspective, the competent court assessing a competition law claim would refer to Competition Board decisions on whether a competition law violation was established, and thus the element of “unlawful action” would be settled on this basis.
The CCA applies to all competition damages claims in Australia.
The claimant will be required to establish its case on the balance of probabilities. The Federal Court may also take into account the gravity of the alleged conduct under the Briginshaw test.
In relation to a competition damages claim, the plaintiff must establish, on a balance of probabilities, both harm (including causation) and quantum of damages suffered. Although the conduct that underpins a section 36 claim is criminal, which would have to be proven beyond a reasonable doubt to secure a criminal conviction, this standard does not apply to a civil damages case.
The Court will determine which is the applicable law by applying the criteria set out under EU Regulation No. 864/2007 on the law applicable to non-contractual obligations (Rome II) and in the Italian Statute on Private International Law of 31 May 1995, No. 218.
In both cases, the general rule is that the applicable law shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred.
That being said, the proceeding - if started in a jurisdiction other than the one of the applicable law - is regulated by the procedural rules of the summoned court which will also apply the rules on the burden of proof of its own jurisdiction.
The court will determine the applicable law based on a conflict of laws assessment.
Procedural law. Procedure wise, article 4(1) of Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters sets out the general rule whereby persons domiciled in a member state of the European Union shall, whatever their nationality, be sued before the courts of that member state. Several exceptions are however applicable: for example, article 7(2) of the Regulation (EU) No. 1215/2012, according to which: “A person domiciled in a Member State may be sued in another Member State: (…) (2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.” This is based on the existence of a particularly close connecting factor between a dispute and courts, other than that of the place where the defendant is domiciled, which justifies the jurisdiction of those courts for reasons relating to the sound administration of justice and the efficient conduct of proceedings. Similar provisions exist in the Romanian Civil procedure code.
Therefore, as most competition damages claims are based on tort liability, the courts for the place where the damage occurred also have jurisdiction.
Substantive law. Substantive law wise, Article 6 (3) of Regulation (EC) No. 864/2007 on the law applicable to non-contractual obligations (Rome II) provides that: “The law applicable to a non-contractual obligation arising out of a restriction of competition shall be the law of the country where the market is, or is likely to be, affected.”
As such, a Romanian based injured party may have solid arguments to bring its case before a Romanian court and to argue that substantive Romanian law is applicable to the merits of the case (on the grounds that it arises from a competition infringement impacting the Romanian market), regardless of the nationality of the defendant.
Standard of proof. No detailed rules as to the standard of proof are provided under Romanian law for competition damages claims. Therefore, the general civil procedure rules on evidence shall apply. Ultimately, the relevance and pertinence of the evidence will be assessed by the court, which will examine their probative value globally.
However, EGO 39 does regulate a series of presumptions meant to facilitate the claimant’s effective access to justice. Thus, where there is already an infringement decision of a competition authority, the existence of the unlawful act (i.e. the first condition of tort liability) is presumed (see question 9). Moreover, in case of cartels, EGO 39 institutes a (rebuttable) existence of presumption, but without indicating a quantum.
Last, but not least, according to EGO 39, the Court has the power to estimate the amount of the damage, ensuring that neither the burden of proof, nor the standard of evidence required to quantify the prejudice make it virtually impossible or excessively difficult to exercise the right to full compensation. These provisions, which are still to be tested in practice, depart from the traditional Romanian civil liability principles according to which both the existence of the damage and its quantum must be certain, albeit a partial reform of this conception was already anticipated through the new Romanian Civil code of 2011, which also gave judges more freedom in determining losses.
In any event, it is to be expected that courts will rely heavily on economist expert reports in order to “estimate” the alleged losses.
The law to be applied to a dispute in the High Court or the CAT depends on the time period relevant to the claim:
(i) Article 6(3) of the EC Regulation 864/2007/EC (“Rome II”) applies when determining the applicable law for the period after 11 January 2009. It states that the relevant test is “where the market is, or is likely to be, affected”. Rome II also states that, when the market is, or is likely to be, affected in more than one country, the person seeking compensation for damage who sues in the court of the domicile of the defendant may instead choose to base his or her claim on the law of the court seised, provided that the market in that EU Member State is amongst those “directly and substantially affected by the restriction of competition”. Further, if the claimant sues more than one defendant in that court, the claimant can elect to apply the law of the court against all of the defendants provided that the claim against each defendant “directly and substantially affects the market in the Member State of that court”. (See question 24 below as to the impact of Brexit.)
(ii) The Private International Law (Miscellaneous Provisions) Act 1995 (the “1995 Act”) applies when determining the applicable law for the period 1 May 1996 to 10 January 2009. The 1995 Act involves a complicated process of weighing up different aspects of the tort (typically in damages actions under competition law, breach of statutory duty). The English Courts will identify: (i) the elements constituting the tort; (ii) the countries in which the events comprising those elements took place; and (iii) the country in which the most significant events comprising those elements occurred. In Deutsche Bahn AG & Ors v MasterCard Inc. & Ors  EWHC 412 (Ch) (“Deutsche Bahn/MasterCard”), the High Court distinguished competition damages actions from other tort cases and held that the most important element of the tort is the restriction of competition in the market.
(iii) The test for applicable law prior to 1 May 1996 is the “double actionability” rule which provides that a tort must be actionable under both English law and the law of the place where harm was done (i.e. the lex loci delicti) to give rise to a cause of action. In Deutsche Bahn/MasterCard, the High Court held that the lex loci delicti would be the country in which competition was restricted in competition cases.
The applicable standard of proof for a competition damages action under English law is the civil standard, i.e. “the balance of probabilities”.
In both individual and collective actions, the applicable law will be the law of the place in which the damaging events took place.
The standard of proof to be applied by the judge is “clear and convincing evidence” according to which the judge shall apply a “reasoned judgment” (Sana Crítica) and conclude that the plaintiff demonstrated the highly probability of the truth of its allegations.
The standard of proof in any US civil case is a ‘preponderance of the evidence,’ as compared with the criminal standard of “beyond a reasonable doubt.” Under the preponderance standard, a claim is proven if it is more likely than not that the claim is true and the defendant did in fact do the wrong that caused the damage.
If a federal district court is presiding over a claim arising out of a federal question (such as a federal antitrust statute), the court will apply federal law. If, however, the court is exercising diversity jurisdiction, it is required to apply the substantive law of the forum state in which it sits.
Under Section 4 of the Clayton Act, a direct purchaser antitrust plaintiff must prove, by a preponderance of the evidence, the existence of a causal connection between the defendant’s antitrust violations and the plaintiff’s injury. This requires the establishment of the following four elements:
i. The defendant violated the antitrust laws;
ii. The plaintiff suffered actual economic injury;
iii. The defendant’s illegal behavior caused the injury; and
iv. The antitrust violation as a material and substantial cause of the plaintiff’s loss.
Once a private antitrust plaintiff successfully proves by a preponderance of the evidence the fact of its injury, it faces a lesser standard in establishing the amount in damages. In a damages calculation, a jury ‘may make a just and reasonable estimate of the damage based on the relevant data.’ Bigelow v RKO Radio Pictures, 327 US 251, 264-65 . However, the calculation cannot be based upon speculation or guesswork. Id.