To what extent are local courts bound by the infringement decisions of (domestic or foreign) competition authorities?

Competition Litigation

Belgium Small Flag Belgium

Article 16 of EU Regulation 1/2003 provides for an irrevocable presumption that an infringement has taken place where there is a decision of the European Commission stating that an infringement of EU competition law has taken place. In case of judicial review of the European Commission’s decision before the General Court of the European Court of Justice, the domestic court must stay its judgment on the damages proceedings.

Belgian law provides for an irrebuttable presumption that an infringement has taken place where there is a decision of the Belgian Competition Authority or, after an annulment proceeding against a decision of that authority, the Markets Court, that an infringement of competition law has taken place. This means that the court must accept that the fault of the defendant has been established. However, the claimant must still prove the damage and the causal link between the fault (the infringement) and the damage.

A decision of a competition authority of another member state of the European Union finding an infringement of competition law shall be accepted at least as a beginning of proof, meaning that the court must take that decision into account when assessing whether there has been an infringement.

The same decision by a non-EU competition authority does not bind the Belgian court in any way, but it can of course be taken into account by the court if it sees fit.

Brazil Small Flag Brazil

A prior infringement decision by CADE is not required to bring a judicial claim. Indeed, judicial claims can be brought even where no CADE´s investigation into the conduct in question has been initiated.

Moreover, CADE´s decision does not bind the Brazilian courts. But, CADE´s decision and the evidence relied upon by CADE (except for confidential ones) may be a trigger, and a source of evidence for damages claims.

As regards foreign decisions, courts usually take them into consideration, despite their non-binding character. However, when a final judgement has been rendered in a foreign court, it may be enforced in Brazil upon prior submission to the Superior Court Justice for Homologation. Such court will determine whether the foreign judgment breaches any Brazilian provision of public order, and if such decision binds the parties in Brazil.

China Small Flag China

  1. While the findings and conclusions of domestic AML competition authorities are not binding on the courts, such findings and conclusions are more likely to be adopted by the courts compared with other documented evidence. According to Art. 114 of the SPC CPL Interpretation, the facts stated in the administrative decisions shall be presumed to be true unless there is evidence to the contrary. Although this rule does not specifically include the application and conclusion in the administrative decisions, the courts will typically interpret it broadly as to make it applicable to the application and conclusion section, which are based on the fact findings. Furthermore, Art. 77(1) of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings (“SPC Evidence Interpretation”) also provides that the documents formulated by state organs or social bodies according to their respective functions are, as a general rule, more forceful than other written evidence. Therefore, it may be difficult for the courts to ignore or overrule a valid decision finding the defendant in violation of the AML in the follow-on competition damages claims.
  2. Having said that, it is noteworthy that divergence exists between the courts and the AML enforcement agencies against vertical monopoly agreements (e.g., RPM). For instance, in 2016, the Shanghai Price Bureau imposed a penalty on Shanghai Hankook (“Hankook”) for entering into and implementing RPM agreements with its Shanghai distributors from 2012 to 2013. Subsequently, one of its Wuhan distributors sued Hankook in Shanghai IP Court for engaging in a vertical monopoly agreement. In July 2018, the Shanghai IP Court dismissed the competition damages claim filed by the distributor. The distributor alleged that Hankook forced it to enter into an agreement that restricted resale prices. The Shanghai IP Court found that Hankook and the distributor reached an RPM agreement. However, the court held that the plaintiff failed to prove anti-competitive harm, and that the RPM agreement therefore did not constitute a vertical agreement prohibited by the AML.

    The SPC recently had elaborated on the divergence between the courts and the AML enforcement agencies against vertical monopoly agreements (e.g., RPM) in a retrial case between Hainan Yutai and Hainan Price Bureau. In 2017, Hainan Price Bureau fined Hainan Yutai for restricting the resale price of its distributors, which was not performed by its distributors. Hainan Price Bureau found that Hainan Yutai’s conduct constitutes an unimplemented vertical monopoly agreement. The first-instance court overruled the Hainan Price Bureau decision and held that Hainan Yutai’s conduct did not constitute a vertical monopoly agreement because Hainan Yutai’s conduct had no anti-competitive effect. The second instance court revoked the first-instance decision and confirmed the Hainan Price Bureau decision. Hainan Yutai applied for the SPC to retry the case. The SPC touched upon the divergence between the courts and the AML enforcement agencies against RPM. The SPC held that the review standards in AML public enforcement and competition damages claims should be different. For public enforcement, RPM would be presumed to constitute vertical monopoly agreement prohibited by Art. 14 of the AML, which could be rebutted by the undertakings concerned; there is no need to prove the anti-competitive requirement. In competition damages claims, the precondition for supporting the claims of the plaintiff is that the conduct of undertakings has caused it to suffer loss, which is the direct embodiment of the anti-competitive effect of monopolistic conduct. Therefore, it is not improper for the courts to review the anticompetitive effect of the alleged monopolistic agreement which may be the basis on which the plaintiff may have suffered losses.

  3. Regarding infringement decisions of foreign competition authorities, although the parties in a competition damages litigation may submit such decisions to the courts as part of their evidence, the findings and conclusions in such decisions may only serve as reference.

Cyprus Small Flag Cyprus

The decision of the CPC finding an infringement of Article 3 and/or 6 of the Competition Law constitutes irrebuttable evidence in that regard. If the decision is from the competition authority of another member state, the decision constitutes rebuttable evidence.

Thus, infringement decisions taken by domestic or foreign competition authorities do bear evidential value and may corroborate the claimant’s case however even if in the end the infringement is proven in Court, the breach itself does not entitle a person to damages ipso facto. The claimant must strictly and particularly prove his/her loss along with a causal link between the loss suffered and the anti-competitive conduct.

Therefore, local Courts are not bound per se by the infringement decisions of competition authorities.

Egypt Small Flag Egypt

Competition (criminal) cases before the Court are initiated by the Public Prosecution upon a request from ECA. It is worth noting that there is no direct link between the ECA and the Court. The Court shall take into consideration the investigations made by ECA along with the investigations made by the Public Prosecution. The Court may cross-examine members of ECA as expert witnesses, however the Court shall have a discretionary appreciation on the merits of the case based on the report of the ECA and the investigation of the Public Prosecution Office as opposed to the defence of the defendant. The court judgment shall be binding erga omnes.

ECA has a territorial jurisdiction in Egypt to:

  • Receive complaints and initiate inspections.
  • Receive mandatory notifications of M&As (when the annual turnover of the persons involved, or when by result of an M&A, the annual turnover exceeds 100 million EGP, the Law obliges that ECA shall be notified of same).
  • Conduct market studies.
  • Create a database for economic activities.
  • Advocate for competition law and policy through awareness and training.
  • Coordinate with sector regulators.
  • Coordinate with peer competition authorities in different jurisdiction.

It is worth noting that article 5 of ECL grants ECA an extraterritorial jurisdiction to the acts committed outside of Egypt subject to the following conditions:

  • The acts committed abroad prevent, restrict, or harm the freedom of competition in Egypt; and
  • The acts committed abroad Constitute crimes under ECL.

France Small Flag France

See above the answer to Question 8.

Germany Small Flag Germany

Pursuant to section 33b GWB (respectively section 33 para 4 GWB as of 13 July 2005), the court is bound by a finding that an infringement has occurred, as made in a final decision by the national competition authority, the European Commission, or the competition authority in another Member State of the European Union where damages are claimed for an infringement of a provision of the GWB or of Articles 101 or 102 TFEU. The binding effect comprises the infringement as it was determined in its material and temporal scope, ie the factual and legal findings of the cartel authority.

Hong Kong Small Flag Hong Kong

Competition authorities in Hong Kong, namely the Competition Commission and the Communications Authority, does not have the power to issue infringement decisions. Only the Competition Tribunal, the Court of First Instance, the Court of Appeal and the Court of Final Appeal may make a decision from which follow-on action may be based.

Infringement decisions of foreign competition authorities (including those of People’s Republic of China) may be considered in follow-on actions as a matter of comity. However, such decisions would not be binding on local courts and would only be relevant to the extent that the infringement decision concerns harm to competition in Hong Kong. Moreover, follow-on actions must be premised on the decision of a Hong Kong court determining a contravention of a conduct rule of the Competition Ordinance or an admission of such contravention in a commitment accepted by a Hong Kong competition authority. The relevance of a foreign infringement decision to a follow-on action in Hong Kong is limited.

Israel Small Flag Israel

In accordance with Section 43(e) of the Law, The General Director’s determination shall constitute prima facie proof of its subject matter. Such evidence (as will be detailed below) constitutes prima facie evidence of the need to approve a request for a class action.

Regarding the infringement decisions of a foreign authority, the prevailing position in international law regarding extraterritorial application of the competition law, is that these laws can be applied to conduct that occurs outside the borders of the country only when there is a clear link between that conduct and the domestic market in that country.

Israeli courts are not bound by decisions of foreign competition authorities finding there was an infringement of the local law, and the plaintiff must prove there has been a violation of the Israeli law.

Japan Small Flag Japan

The courts are not legally bound by the infringement decisions issued by domestic or foreign competition authorities. However, in practice, final and binding cease and desist orders or surcharge payment orders by the JFTC would be recognized as strong evidence that presumes the existence of the violating conduct of the AMA. It is generally difficult to overturn such presumptions, although the court examines other evidence and determines the existence of the violating conduct based on its own findings.

We expect that final and binding infringement decisions by foreign competition authorities would have the same evidential value as the ones by the JFTC.

The Netherlands Small Flag The Netherlands

Article 161a DCCP lays down the evidentiary value of a final and conclusive cartel infringement finding by the Netherlands Authority for Consumers & Markets (ACM). An irrevocable decision containing an infringement decision by the ACM provides irrefutable evidence of the established infringement in proceedings in which damages are claimed for an infringement of competition law as referred to in article 6:193k(a) DCC. European Commission decisions are binding on the addressee of those decisions in private enforcement proceedings. Under Dutch law it is not certain whether this applies to the entire decision or only the operative part. In Dutch civil proceedings proof can be delivered by all legal means available (152 paragraph 2 DCCP), hence also by foreign infringement decisions. Courts are allowed to take into consideration evidence to the contrary.

Philippines Small Flag Philippines

The PCC is primarily tasked with the original and primary jurisdiction to enforce and implement the PCA, and its rules and regulations. Thus, its factual findings, as the administrative body charged with this specific field of expertise, will be afforded great weight by the courts. Based on jurisprudence, unless it is shown that such findings by an administrative body are not supported by substantial evidence (i.e., such amount of relevant evidence that a reasonable person might accept as adequate to justify a conclusion), they are conclusive and will not be disturbed.[19]

Under Philippine jurisprudence, when a statute has been adopted from another State and such statute has previously been construed by the courts of such State or country, this statute is deemed to have been adopted with the construction so given it.[20] Thus, the decisions of competition authorities in those jurisdiction whose competition laws served as models for the PCA (i.e. the United States and the European Union) may have persuasive weight.

[19] - Miro v. Mendoza, et al, GR No. 172532, 20 November 2013
[20] - Carolina Industries, Inc v. CMS Stock Brokerage, GR No L-46908, 17 May 1980

Poland Small Flag Poland

Under the Polish Private Enforcement Act an infringement of competition is deemed to be established by a final infringement decision of the OCCP or a final judgment rendered by a court as a result of an appeal of a decision of the OCCP. The court is bound by such a decision with regard to the nature of the infringement and its material, personal, temporary and territorial scope.

Moreover, according to the provisions 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, Polish courts cannot issue decisions inconsistent with the decision issued by the Commission. This applies to the cases when the European Commission recognises that some specific agreement, decision or practice are prohibited pursuant to Article 101 or 102 TFEU. Therefore, the decision of the European Commission is binding for the Polish courts.

Portugal Small Flag Portugal

The decision issued by a national or an international competition authority regarding the existence of a breach of competition law constitutes an irrebuttable presumption for the courts on the existence, nature, and material, subjective and temporal scopes for purpose of liability claims for the damages resulting therefrom.

Argentina Small Flag Argentina

The sanctioning resolution in relation to a violation of the Competition Law issued in Argentina, once it becomes final and binding, has the force of res judicata. The court having jurisdiction has the obligation to base its decision on damages on the conduct of the parties and the facts established in said Argentine sanctioning resolution.

The finding of a fact and/or infringement in a decision or judgment in a third country is not binding in Argentina. It can be used as an example of what happened in similar situations in a different jurisdiction, but the court is not bound to follow that decision.

Sweden Small Flag Sweden

The Competition Damages Act stipulates that a finding of a breach of the provisions in the Competition Act in a final ruling may not be re-examined in a subsequent action for damages. This is a change from the earlier Swedish legal tradition, which considered judgments as only binding between the parties and as an evidentiary fact (which can be rebutted) in all other cases.

Final decisions by foreign competition authorities or review courts are regarded as prima facie evidence of the fact that an infringement of competition law has occurred in a subsequent damage proceeding.

Turkey Small Flag Turkey

Theoretically, the courts are not bound by the decisions of the Competition Board. However, these decisions influence courts and, from a practical perspective, courts can be expected to rely on the Competition Board findings while evaluating their case. The importance of the Competition Board’s decision for the courts is demonstrated by the fact that the Court of Cassation precedents treat the resolution and finalization of the Competition Board decision in a case as a “preliminary issue”, meaning that the courts do not allow the lawsuits to proceed before a finalized Competition Board decision.

There are no clear restrictions on using foreign competition authorities decisions to make claims, but it is highly likely that the courts will require the Turkish Competition Board's decision regarding the relevant competition law restriction.

Australia Small Flag Australia

Australian courts are not bound by infringement decisions of domestic or foreign competition authorities.

Canada Small Flag Canada

Courts are not bound by infringement decisions of competition authorities. However, a guilty plea or conviction on the same facts is prima facie evidence that the conduct occurred. Under section 36 of the Act, absent any evidence to the contrary, a person who has been convicted of an offence under the criminal sections of the Act or convicted or punished for non-compliance of an order issued under the Act, is presumed to have engaged in conduct contrary to the Act or failed to comply with the order.

Italy Small Flag Italy

According to Article 7 of the L.D. 3/2017, for the purposes of an action for damages, the final decision of the Italian Competition Authority (i.e. no longer subject to challenges) concerning the infringement of the competition law shall be deemed definitely ascertained with regard to the nature of the violation and its material, personal temporal and territorial scope, but not with regard to the existence of damages and of a causal link between such damages and the anticompetitive conduct.

Therefore the court is left to ascertain the above and to determine the quantification of damages (if any).

Moreover, it is provided that if the decision is issued by a competition authority or administrative court of another EU member state, then the above circumstances (i.e. nature of the violation and its material, personal temporal and territorial scope) shall be considered as evidence against the infringer and can be evaluated together with other evidences.

In this respect, it shall be noted that even before the entry into force of L.D. 3/2017 which has reinforced the binding nature of the Italian Competition Authority, the Supreme Court had for years recognized the value of this kind of decisions as a 'privileged proof' of antitrust tort, in the sense that those decisions give rise to a presumption of the existence of the infringement, which can be overcome by the defendant only by providing evidence to the contrary which was not already assessed by the authority.

Romania Small Flag Romania

An infringement of competition law found by a final decision of either the Romanian Competition Council (the RCC), the European Commission, or a Romanian court is deemed to be irrefutably established for the purposes of competition damages cases brought before Romanian courts.

A final decision of either a national competition authority or a court of law issued in another member state – brought before a Romanian court in a competition damages case – has the legal value of a rebuttable presumption as to the existence of the alleged infringement; as such, it may be assessed along with any other evidence adduced by the parties, and rebutted by the defendant.

United Kingdom Small Flag United Kingdom

Decisions of the Commission and the CMA are binding on both the High Court and the CAT. This means that if a claimant brings a follow‑on action in reliance on a decision taken by the Commission or the CMA, it does not need to establish that the defendant(s) has(/have) infringed competition law; it merely has to show that it has suffered loss as a result of the infringement.

Decisions of national competition authorities other than the CMA are not binding on the High Court or the CAT. However, they are treated as evidence that an infringement of competition law has occurred.

Colombia Small Flag Colombia

Colombian judges are not bounded by the decisions issued by foreign competition authorities, unless such authorities are judges and their decisions undertake an exequatur procedure before the Colombian Supreme Court of Justice, for them to be enforceable in Colombia.

In principle, no administrative decision, even if it is issued by the Colombian competition authority bounds a judge that is in charge of deciding a competition claim.

In Colombia, the Superintendence of Industry and Commerce (the competition authority) has administrative faculties to investigate and impose sanctions to companies and persons that incur in anti-competitive activities. The sanctions imposed include fines that will be received by the Nation and that do not have as a purpose to compensate any damage caused.

As they serve different purposes, administrative decisions are not require for the judge to issue a sentence on a competition claim, and considering that the judge will have to make his own analysis of the conducts to determine if the conduct can be typified as an anti-competitive conduct and if it has caused a damage, in principle, it is possible that the judge and the competition authority provide decisions that might be contradictory.

United States Small Flag United States

A criminal conviction for an antitrust offense is prima facie evidence of liability in all parallel civil cases. 15 USC § 16(a) (2018).

The Full Faith and Credit Clause of the US Constitution provides that each court must recognise the rulings of other courts. Further, 28 USC § 1738 provides, in relevant part, that state judicial decisions ’shall have the same full faith and credit in every court within the United States … as they have by law or usage in the courts of such State … from which they are taken.’ In Migra v Warren City School District. Board of Education, the Supreme Court stated that a federal court must give a state court decision the same preclusive effect as that same judgment would be given under that state’s law. 465 US 75, 80 [1984]. Additionally, an emerging pattern of cases has shown that federal courts find that state court judgments on state antitrust claims may collaterally estop litigation of federal antitrust claims if the same underlying facts are present. Clough v Rush, 959 F2d 182, 187-88 [10th Cir 1992]; Eubanks v Getty Oil Co, 896 F2d 960, 964 [5th Cir 1990].

Further, the Supreme Court has held that res judicata principles may apply to administrative agencies and federal courts may give preclusive effect to decisions of such agencies, such as the FTC, when: (1) that agency acts in its judicial capacity; (2) the agency resolves disputed issues of fact properly before it; and (3) the parties had an adequate opportunity to litigate those issues. United States v Utah Construction & Mining Co, 384 US 394, 421 [1966].

Absent any treaties or agreements between the United States and foreign nations, foreign competition authorities’ infringement decisions would not be binding on US courts. For example, the European Union cooperates with United States competition authorities [the DOJ and the FTC] based on the following agreements:

  1. 1991 EU/US Competition Cooperation Agreement;
  2. 1998 EU/US Positive Comity Agreement; and
  3. 2011 EU/US Best Practices on Cooperation in Merger Investigations.

These agreements seek to promote cooperation and uniformity amongst competition authorities.

Further, in Animal Science Products, Inc v Hebei Welcome Pharmaceutical Co, the Supreme Court held that ‘a federal court should accord respectful consideration to a foreign government’s submission, but it is not bound to accord conclusive effect to the foreign government’s statements.’ 585 US _, 138 SCt 1865, 1869 [2018]. In this class action antitrust suit, the Court determined that a federal court, in determining foreign law, may consider ‘any relevant material or source,’ but does not have to give conclusive weight to foreign law or decisions. Id.

Updated: August 7, 2019