To what extent can a private damages action proceed while related public enforcement action is pending? Is there a procedure permitting enforcers to stay a private action while the public enforcement action is pending?
Private damages actions can proceed unhindered while a related public enforcement action is pending before the European Commission, the Belgian Competition Authority or another competition authority. However, if the competition infringement also qualifies as a criminal offence (which is the case for bid-rigging in public tenders) and a criminal investigation has been started, the judgment on the damages claim must be stayed as of the beginning of the criminal investigation by an Investigating Magistrate until a final criminal judgment.
Private lawsuits can be brought regardless of the existence of a decision on the public enforcement action, and even be brought before the public enforcement action is opened.
There are no explicit rules governing the relationship between AML public enforcement procedure and private actions. According to the current AML and other relevant regulations, the public enforcement agencies and the courts both have the power to proceed with the investigation and review simultaneously. Obviously, if the two proceedings proceed at the same time, the decisions made by the AML enforcement agencies and the courts may be different. Under such circumstance, the courts may, at its sole discretion, invoke the catch-all provision of Art. 150 of the CPL to suspend the trial while waiting for the AML enforcement agencies’ decision. However, the courts is not obligated to do so. For example, as we have witnessed in Huawei vs. IDC, the court did not suspend the trial while a related public investigation was pending but proceeded to issue the judgment. Furthermore, there is no procedure at hand permitting public enforcement agencies to stay a private action while the public enforcement action is pending.
Typically, a private civil damages action can proceed while a related public enforcement action is pending (i.e. before the CPC). Practically however the Court procedures would only be expedited if there is a relevant decision of the national competition authority or other expert reports concerning infringements of the Competition Law by the defendant.
Furthermore, the timeframe for the completion of Court proceedings, at the moment, is typically over 3 years for claims over €3,000 and a decision of a related public enforcement authority, like for example the CPC, could usually take up to 2 years. Therefore, the public and private procedures are independent of each other and in the case of CPC, a decision could be used as evidence in the concurrent Court proceedings at the hearing stage as evidence in order to prove the infringement of Competition Law and get awarded damages.
In a criminal litigation context, whereby Economic Court have the exclusive jurisdiction over criminal competition cases, parties who suffered harm due to the criminal offenses committed by the accused persons with regards to competition offences may join the criminal case by filing dependent civil compensation claims parallel to criminal proceedings.
Review of civil claims by the Court shall be dependent on the criminal claim, meaning that the criminal aspect has a priority over the civil aspect. The reason of this priority is that the harm subject of the civil compensation claim is supposedly the consequence of the criminal offence. If the criminal offence is not established by the Court, the civil compensation claim may be deemed groundless and inadmissible.
Under article 378 of the civil procedure code, courts have the possibility, but are under no obligation, to stay a private damages action if related public enforcement proceedings are pending before the FCA, the Commission or appeal courts.
Even though stand-alone cartel damage claims are uncommon because claimants usually prefer to base their claim on the cartel authority’s final decision since it is binding for the courts in several aspects (see above question 9), it is possible to initiate and proceed a private action whilst public enforcement is pending. There is no procedure permitting enforcers to stay a private action while the public enforcement action is pending. In practice, the defendants often request for a stay of the proceedings while a related public investigation or proceedings, including appeals against the resulting decisions before courts, are pending. It is at the court’s discretion to grant such a stay of proceedings.
Currently, there is no right to bring a standalone private action for competition damages claims in Hong Kong. This has been confirmed in a recent decision of the Court of First Instance (see Loyal Profit International Development Ltd v Travel Industry Council of Hong Kong  HCMP 256/2016).
Competition damages claims can only be brought about by way of follow-on action in Hong Kong. This means that a competition authority would have already succeeded in its public enforcement action before a Hong Kong court, in which a decision was made determining a contravention of a conduct rule of the Competition Ordinance. As such, there is no procedure for enforcers to stay a private action while the public enforcement action is pending.
Nonetheless, if a private action before the Competition Tribunal or the Court of First Instance involves an alleged contravention, or alleged involvement in a contravention, of a conduct rule of the Competition Ordinance, the Competition Commission or the Communications Authority may apply to the court to intervene in such proceedings under section 120 of the Competition Ordinance. Alternatively, the court may refer a case to a Hong Kong competition authority for investigation under section 118. In such event, the competition authority may apply to the court to stay the private action pending the completion of the authority’s investigation in to the alleged contravention or involvement that is in issue in the proceedings.
The rule of thumb is that damages actions can proceed while related public enforcement action is pending. The ICA does not have a legal option through which it can suspend a civil proceeding that is conducted concurrently with an enforcement proceeding. However, the ICA has the option to present its claim before the court hearing the civil procedure and request that it be suspended. In such a case, the court will hear the positions of the parties to the proceeding, and in practice will treat the authority's position as an important factor.
Litigation of Type A claims can proceed while the public enforcement action is pending. There is no statutory provision which enables the enforcers to stay the Type A private action. Even while the public enforcement action is still pending, the court may render a final judgment if it reaches the stage to do so. However, in light of our experience, it is possible that the private litigation proceedings may be stayed in effect at the court’s discretion if the court becomes cautious about recognizing the existence of the violation of the AMA.
In contrast, Type B claims may only be made after either a cease and desist order or a surcharge payment order has become final and binding (See Question 2).
In the event the decision of the European Commission is challenged, the Masterfoods-doctrine provides that national civil proceedings can be stayed or suspended until the decision of the Commission to impose a fine has become irrevocable. The Dutch courts so far have not been very receptive of this argument. In, for example, the Air Cargo cartel cases the court decided to proceed with the proceedings to the extent it does not concern questions of fact or law to which the answer depends on the validity of the European Commission’s decision, e.g. establishing the applicable law and the question whether the claims have been time barred.
For the proceedings to be stayed, there must be reasonable doubt that the European Commission’s decision is valid. The party requesting stay of proceedings needs to prove that it has appealed against the decision and substantiate that in the proceedings before the EU courts, it reasonably contests the European Commission’s decision and set out the defences that it intends to raise in the national proceedings, so the national court can determine whether and to what extent the assessment of those defences raised in the national proceedings is dependent on the validity of the European Commission’s decision.
Section 45 of the PCA provides that a private action for competition damages is a separate and independent civil action which may be instituted after the completion of the preliminary inquiry by the PCC. A separate civil action proceeds independently of the criminal proceedings instituted in relation to such action.
While enforcers may try to obtain a stay of the private action, enforcers will have to establish the requisites for the issuance of an injunction (discussed above). This may be difficult due to the clear language of Section 45, which expressly allows a private claim for damages to proceed separately and independently.
 - People v. Lipata, GR No. 200302, 20 April 2016
Private damages action can be proceeded independently from a public enforcement action. There are no specific rule permitting enforcers to stay a private action while the public enforcement action is pending and the general rules of the Polish civil procedure apply. This means that the court, may optionally stay the proceedings on its own initiative, e.g. if it considers that the determination of the case depends on the outcome of other civil proceedings pending or a prior decision issued by a public administration authority. The decision ultimately always lies within the discretion of the court.
If the decision on a private damages claim is dependent on an investigation or a decision by a competition authority or the subsequent ruling of the competent court that is called to decide on the validity of an administrative decision, the court may stay the proceedings relating to that damages claim. In these circumstances, the stay of the proceedings may be ordered by the court, on its own competence, or by request of the parties.
Damages claims are usually initiated as follow-on actions, in reliance on the prior finding of infringement by the public enforcement authority. However, it is not a requirement that there is a prior finding of infringement and neither there is an obligation to stay a private action while the public enforcement action is pending.
A private damage action can proceed while a related public enforcement action is pending. The claimant cannot, however, rely on the evidence that a public enforcement decision entails and instead has to prove the infringement itself. It is also possible for the court to stay proceedings in a private enforcement case in order to await a judgment in another case, e.g. public enforcement, if the subject matter of such a case is of exceptional importance in the private enforcement case.
According to the Competition Damages Act, a private damages action may be suspended by the court if two or more parties have started settlement discussions that relate to claims that are relevant to the case at hand. The case should be resumed before the court within two years from when the court decided to stay proceedings.
In its former decisions, the Court of Cassation took the position that the finalization of the Competition Board decision was a formal requirement to be able to initiate an antitrust-based private damages action. However, in a recent decision, the Court of Cassation changed this position and reversed a first instance court's decision dismissing the lawsuit on the ground that it was filed untimely (the Turkish Competition Board's relevant decision was subject to annulment proceedings before the Council of State at that time).
Based on the recent precedent, the finalization of the decisions of the Competition Board is no longer regarded by the courts as a requirement to initiate the action but as a “preliminary issue” for the civil lawsuits. In other words, a claimant can initiate an action in the absence of a Competition Board decision finalized under judicial review; however, such an action would be stayed pending the resolution/finalization of the Competition Board’s enforcement decision.
The Federal Court has the power to order a stay of proceedings in the Federal Court pending the determination of other proceedings in that or another court. In determining whether to exercise its discretion, the Federal Court will consider the advantages and disadvantages that a stay would confer on the claimant and defendant.
In practice, private damages claims are usually brought after determination of public enforcement action by the ACCC.
Although private applications before the Tribunal cannot proceed while a Competition Bureau (“Bureau”) inquiry or proceeding is ongoing, private damages actions before the courts may proceed in tandem with public enforcement actions. Historically, however, the Bureau’s case has proceeded first. For example, in 2009, the Bureau began an investigation into auto parts bid-rigging, which related to a series of bid-rigging agreements among auto parts suppliers. This investigation resulted in 13 guilty pleas between April 2013 and October 2018. Although some class actions settlements have been achieved with various defendants, many of these actions are still proceeding and are likely to continue for several years.
There is no mandatory suspension of stand-alone private claims before civil courts in the case that a proceedings or an investigation by the Italian Competition Authority or a proceedings by administrative courts are underway (i.e. those relating to the challenge of the Italian Competition Authority decisions).
Competition damages claims are stayed for as long as the corresponding public enforcement action is pending.
If a competition authority takes investigative action against a suspected infringement, the limitation period corresponding to the competition damage claim does not begin to lapse, or, if it has commenced, it is suspended.
The High Court and the CAT must not deliver judgments which might conflict with decisions contemplated by the Commission or the CMA. Proceedings which relate to conduct subject to a regulatory investigation will therefore typically be stayed until the investigation has been completed and the regulator has given its decision. However, the High Court and the CAT have recently been inclined to progress private proceedings as far as possible while awaiting the regulator’s decision. Accordingly, parties are likely to be required to file all of their pleadings before a stay is granted, and may also need to undertake disclosure and/or exchange of evidence.
As mentioned above, in principle, the judge can decide a competition claim without being necessary a prior decision of the competition authority or to wait for such decision if there is already an investigation on course.
Commonly, private antitrust litigation will follow the commencement of a government enforcement action.
In some circumstances, a private antitrust case will be stayed when federal prosecutors are investigating the same defendant(s) in a criminal action. The DOJ must request the presiding court to stay the proceedings, at the court’s discretion. Similarly, courts may stay proceedings pending the resolution of an independent proceeding where the resolution in that forum may lead to issue preclusion. Hawaii Children’s Blood & Cancer Group v Hawai’i Pacific Health, Civ No 03-00708 [SOM/LEK], 2009 WL 62418 [D Haw Jan. 8, 2009].