What is required (e.g. in terms of procedural formalities and standard of pleading) in order to commence a competition damages claim?

Competition Litigation

Belgium Small Flag Belgium

Generally speaking, claimants will have to evidence that the defendant has committed an infringement of competition law, which caused the claimant to suffer losses. The standard for proving causality is a “but for” standard, meaning that the claimant must prove that he would not have suffered the losses but for the infringement. However, in cartel damages claims, Article XVII.73 CEL creates a presumption that the infringement has caused losses, which the defendant may rebut.

Procedurally speaking, claims for competition damages may be brought by one of two types of claimants:

  • First, by claimants who have a personal interest in bringing the claim, for instance because they are the party which suffered the loss or because they are the assignee of a claim for damages. Claims introduced by associations to safeguard a general interest are not allowed under Belgian law, unless they are intended to protect human rights or fundamental freedoms.
  • Second, by a group representative in the framework of a proceeding for collective redress. However, Belgian law limits the possibility for a person to act as a group representative to specific categories of entities enumerated in the law (which mostly concern non-profit organisations whose goal is the promotion of consumer or SME rights), and only if the court decides that the group representative is suited to act as a group representative in that specific matter, taking into account a range of circumstances.

Brazil Small Flag Brazil

There are two requirements to commence a competition damages claim: (i) legal interest – i.e. judicial intervention is a requirement to achieve the claimant's purpose of action, and the law allows the claimant to pursue such purpose by bringing a claim; and (ii) legal standing – i.e. the claimant is an injured party, which has suffered damages and is entitled to seek redress.

With regards to damages, it is necessary to show that an infringement of law occurred, that damages were sustained (actual loss or forfeited profits), and that there is a causal link between the damages and such infringement. In other words, there must be evidence supporting the existence of an anticompetitive conduct that resulted in specific and quantifiable damages suffered by the claimant.

China Small Flag China

Since a competition damages claim is a civil case, the procedural formalities and standards of pleading to commence such claim shall be governed by the Civil Procedure Law of PRC (“CPL”). The requirements for instituting a civil lawsuit are laid out by Art. 119 of the CPL, which include:

  • the plaintiff(s) must be a natural person(s), legal person(s), or other organisation(s) with a direct stake in the case;
  • there must be a specific defendant(s);
  • there must be a specific claim(s), facts, and reasons; and
  • the lawsuit must fall within the scope of acceptance of civil lawsuits by the courts, as well as the jurisdiction of the court which accepts the lawsuit.

Cyprus Small Flag Cyprus

In order to commence a competition damages claim within the context of a civil action before a competent District Court in Cyprus, the claimant must be able to present and prove a reasoned claim containing available facts and alleged breaches of competition law sufficient to support the plausibility of their claim for damages as a result of a breach by the undertaking or associations of undertakings of the Competition Law.

The procedure as with all civil actions begins with the claimant filing their action with the competent District Court which has jurisdiction to hear claims for such damages (i.e. the Court where the defendant has its residence (for natural persons) or where a legal entity has its registered office). Alternatively, the action may be brought before the District Court of the territory where the alleged breach of the Law or where the loss has occurred.

Once the action is filed in Court, it is also served to the defendant whereby said party may proceed to file its defence within a specific timeframe.

The evidential burden of proof is borne by the claimant; specifically, the claimant must prove one or more infringements of the Competition Law and that such infringement caused them loss and/or damage.

Egypt Small Flag Egypt

According to the Egyptian Civil and Commercial Procedural Code (“ECCPC”), proceedings are commenced ab initio by filing a Statement of Claim before the competent Court. According to the ECCPC, the Statement of Claim should include the following:

a) The Plaintiff's name, surname, profession/occupation, and domicile; and his Representative's name, surname, profession/occupation, capacity, and domicile;

b) The Defendant's name, surname, profession/occupation and domicile or last known domicile if he has no known domicile;

c) Date of filing the Statement of Claim;

d) The Court before which the action is being brought;

e) The Plaintiff's elected domicile in the circuit where the Court is located if he does not have a domicile therein;

f) The facts of the action and the Plaintiff's claims and the supporting evidence thereof.

In practice, pleadings before the Court are mostly through written submissions, and the Court may as well rely on oral pleadings as may be requested by the parties.

France Small Flag France

Victims of anticompetitive behaviour can sue the infringers on the basis of tort law (article 1240 of the French civil code (civil code), which provisions are mirrored in article L. 481-1 FCC, or contractual law if the anticompetitive behaviour derives from prior contractual relationships between the parties (article 1231 of the civil code).

The three following cumulative conditions must be met to trigger the defendant’s liability:

  • A wrongful act (fault) on the part of the defendant. In competition damages claims, the competition law infringement (see above the answer to Question 1) will be the wrongful act;
  • A damage suffered by the claimant; and
  • A causal link between the wrongful act and the damage suffered.

The claimant will have to summon, through a court bailiff, the author of the alleged anticompetitive practices before the competent French court (see below the answer to Question 6 on the courts’ jurisdiction). The summons should (i) clearly identify the contentious practices and demonstrate that they are in fact anticompetitive, (ii) describe and quantify the claimant’s damage and (ii) establish that this damage was directly caused by the anticompetitive practices.

Germany Small Flag Germany

The formalities and standards do generally not differ from “regular” claims. The essential minimum requirements for a claim to be filed with a German court are listed in section 253 of the German Code of Civil Procedure (ZPO): A statement of claim, ie a written pleading, is required to commence proceedings. It must designate the parties to the dispute and the court where the proceedings shall be initiated (para 2 no 1). Furthermore, the statement of claim must provide exact information on the subject matter and the grounds for filing the claim as well as a precisely specified prayer for relief (para 2 no 2). The statement of claim must explain what particular relief the claimant seeks the court to grant and on what facts this request is based. Whereas the claim must not be comprehensive - the claimant may generally supplement its pleading at a later stage subject to the procedural rules on preclusion -, it must contain sufficient details enabling the defendant to comprehend and to comprehensively defend against the claim.

Where a competition authority (such as, eg, the German Federal Cartel Office or the European Commission) has issued a decision, the claimant may for certain aspects, in particular the factual findings, fully refer to the findings therein (see further below question 9).

There is no mandatory initial information request stage pre-action so that the claimant can seize the German court without prior notice to the alleged cartel members.

Hong Kong Small Flag Hong Kong

Procedural formalities and standard of pleading to commence a competition damages claim are similar to those for commencing civil damages claims in the High Court. CTR Rule 93 requires follow-on actions to be commenced by filing an Originating Notice of Claim, endorsed with a Statement of Claim, to the Competition Tribunal and serving such documents on the defendants named in the notice. Such documents must specify the decision of the specified court or admission in a commitment on which the claim for damages is based upon, as well as the nature of claim and relief sought. This should also include an estimated aggregate amount claimed. A filing fee will need to be paid to the Competition Tribunal to start the claim.

Israel Small Flag Israel

The Civil Procedure Regulations determine the procedural manner in which a claim will be filed, inter alia, in a tort action. There are no special requirements that relate specifically to a competition damages claim. The statement of claim must include the main facts that constitute the cause of action, the facts that grant the court the power to hear the claim, the requested remedies, the value of the claim, and the defendant's case and its connection to the claim.

In cases in which the claim for damages relies on the breach of statutory duty, the plaintiff is required to prove that the statutory duty is intended to protect it; that the damage caused is the kind of damage that the statutory duty is intended to prevent; and causation (both factual and legal) between the damage and the breach of the statutory duty.

Japan Small Flag Japan

Type A claims (Article 709 of the Civil Code)

Type A claims are general tort claims. Not only direct purchasers but also indirect purchasers may commence lawsuits for such claims by the filing of complaints with a competent district court. A claimant must prove (i) existence of intention or negligence; (ii) violation of rights or legally protected interests; (iii) occurrence and amount of damage; and (iv) legally sufficient causation between the violation and the damage.

Type B claims (Article 25 of the AMA)

Type B claims may only be made after either a cease and desist order or a surcharge payment order by the Japan Fair Trade Commission ("JFTC") has become final and binding regarding, among other things, private monopolization, unreasonable restraint of trade or unfair trade practices (follow-on claims, Article 25(1) and Article 26(1) of the AMA).

While these claims are under strict liability, Type B claims are not considered to be advantageous for the claimant because, with regard to most violations of the AMA, (i) intention or negligence and (ii) the violation under Type A claims are, as a matter of practice, presumed. On the contrary, those claims are disadvantageous in that (i) claimants may only assert a compensation claim for damage arising from violating actions stated in the cease and desist order or surcharge payment order; and (ii) no claim may be made against persons other than those to whom the cease and desist order or surcharge payment order is addressed. In this regard, a successful leniency applicant that is exempt from the relevant order (surcharge payment order and/or cease and desist order) is not liable for damages under Type B claims (whereas, in contrast, they will still be liable for damages under Type A claims).

The Netherlands Small Flag The Netherlands

In order to have standing, the claimant needs to have sufficient (legitimate) interest in its claims (article 3:303 DCC). Legal proceedings are initiated by serving a writ of summons on a defendant through a bailiff. In the writ of summons, the defendant is requested to appear before the court on the indicated docket date. Both the claimant(s) and the defendant(s) are required to pay (standard) court fees.

Apart from the more administrative requirements such as including the claimant’s and defendant’s names and place of residence, the writ of summons will need to include a description of the claim and the grounds thereof (article 111 paragraph 2 sub d Dutch Code of Civil Procedure (DCCP)). This has to be a sufficient detailed description of the grounds and the relevant facts and circumstances, so that the defendant is capable of adequately defending itself. In addition, each of the parties is obliged to truthfully put forward any and all relevant facts that support their case (article 21 DCCP).

In 2012, the Dutch Supreme Court in the ANVR/IATA case (ECLI:NL:HR:2012:BX0345) laid down the groundworks for the obligation to furnish facts in (stand-alone) competition damages cases. The court held that the claimant should substantiate its claim with the relevant (economic) facts and circumstances in such way that it facilitates a sufficiently adequate and founded (economic) party debate and assessment of the court on e.g. the market definition, the relevant market structure and market characteristics, the actual functioning of the relevant market (s) and the effect thereof of the alleged infringements. The claimant cannot suffice with a general indication of infringements of competition laws or a brief indication of the relevant geographic and product markets. The threshold for furnishing facts is obviously less high in case there is an infringement decision from a competition authority. However, that the obligation for claimants to furnish facts is also relevant in follow-on cases has been confirmed in several recent cases, from which it follows that the claimant must provide a sufficient factual basis for its claims (e.g. Arnhem-Leeuwarden Court of Appeal, ECLI:NL:GHARL:2019:1060; Amsterdam District Court, ECLI:NL:RBAMS:2019:3574).

Philippines Small Flag Philippines

A civil action for damages for any violation of the PCA may only be filed after the Philippine Competition Commission (PCC) has completed its preliminary inquiry on the violation. This is because the PCC has original and primary jurisdiction to enforce the PCA and investigate violations of the same.[1] Under Philippine law, a case which falls under the specialized expertise of an administrative agency must first be filed with such administrative agency before the courts can take jurisdiction.[2]

A preliminary inquiry can result in: (i) a resolution of closure, if the PCC finds that the PCA has not been violated; (ii) a resolution of closure without prejudice, if the PCC finds that the facts or information are insufficient to proceed, but without prejudice to another preliminary inquiry; or (iii) a resolution to proceed, if the PCC finds reasonable ground to conduct a full administrative investigation.[3]

After completion of a preliminary inquiry by the PCC, a party commencing a competition damages claim must file a complaint with the Regional Trial Court (RTC) setting out (a) the facts constituting the violation of the PCA; (b) the fact that a preliminary inquiry has been completed by the PCA finding that the violation was indeed committed; and (c) the injury / damages arising out of the violation. These allegations will have to be proven by the complaining party during the proceedings.

[1] - PCA, section 12.
[2] - Euro-Med Laboratories v. Batangas, GR No. 148106, 17 July 2006.
[3] - PCA, section 31; PCC Rules of Procedure, Rule II, section 2.6.

Poland Small Flag Poland

In order to commence a competition damages claim based on the Polish Private Enforcement Act one must file a written statement of claim that meets the general standard of a pleading and requirements set out in the Act of 17 November 1964 Code of Civil Procedure (Polish Civil Procedure Code).

In particular, the applicable court fee must be fully paid for the court to take any action. In addition, there are number of formalities regarding the pleading itself. A statement of claim has to i.a. (i) specify the relief sought, (ii) describe the facts in support of the claim and, where necessary, also the grounds for the court jurisdiction and (iii) provide evidence in support of the alleged facts. It should also include necessary motions aimed at the preparation of a trial, for instance motions to summon witnesses and expert witnesses named by the claimant, to carry out an inspection, to order the defendant to bring to the trial document or a thing to be inspected, to produce evidence which is in possession of courts, offices or third parties for purposes of trial, or a motion for disclosure, which is an instrument specific for competition damages claims only.

Apart from the above, the statement of claim must include information whether the parties attempted mediation or used other alternative dispute resolution methods, or if not, the reasons for failing to do so.

Importantly, the final decision of the Polish competition authority, i.e. the President of the Office of Competition and Consumer Protection (OCCP), or other competition authority of the EU member state or the European Commission, is not recognised as a prerequisite to commence a competition damages case.

Portugal Small Flag Portugal

In order to commence a competition damages claim an infringement to the competition law should have occurred that caused harm to the claimant.

The claimant is required to submit a statement of claim that, amongst other formalities, (i) identifies the competent court and the relevant parties, (ii) presents in detail the essential facts that constitute the grounds of the damages claim and the respective applicable law, (iii) clarifies the relief sought, (iv) states the value of the claim, and, if applicable, (v) submits a list of witnesses and other evidence to be produced.

The statement of claim before the court might be preceded by proceedings conducted before a competition authority. The court might, with some limitations, request for the proof collected in those proceedings to be made available to the judicial proceedings and in case a definitive decision is issued before the decision in the judicial proceedings, it establishes an irrebuttable presumption of the existence and nature of such infringement as well as of its material, subjective, temporal and territorial scopes, for the purpose of a claim for damages.

Argentina Small Flag Argentina

Claimant will be required to call the defendant to a prior and mandatory mediation (according to Law 26,589). Besides, claimant will have to pay the tax Court consisting of the 3% of the amount of the claim plus interest.

The general rule is that anyone who suffers harm that results from an antitrust infringement has standing to initiate a damages claim. Hence, the existence of (i) an antitrust infringement; and (ii) the actual harm due to said infringement must be alleged, and eventually demonstrated, to commence a damages claim.

The antitrust court's resolution in relation to a violation of the Competition Law, once it becomes final and binding, has the force of res judicata, so the claimant of a follow-an action must only demonstrate that the already proved infringement caused him harm.

Sweden Small Flag Sweden

Anyone who has suffered damage caused by anticompetitive behaviour may file for damages. Standing is not limited to those directly affected by the anticompetitive behaviour and indirect purchasers may also bring claims. As mentioned above, corporations and individuals from other jurisdictions may also bring claims before a Swedish court provided that they are considered undertakings within the meaning of the Competition Act (i.e., a natural or legal person engaged in activities of an economic or commercial nature). It is not necessary for a competition authority to have issued a finding of an infringement before a private antitrust action is initiated.

Turkey Small Flag Turkey

The claimant should submit a petition and pay the calculated legal fees for the case at hand to commence a competition damages case.

Australia Small Flag Australia

Procedural formalities

Proceedings are commenced by filing an originating application accompanied by a statement of claim or supporting affidavit in the Federal Court of Australia.

The limitation period for commencing proceedings is six years after the day on which the cause of action that relates to the conduct accrued. In competition damages cases, this is six years after the day on which the relevant loss or damage was suffered.

Standard of pleading

The statement of claim must include pleadings showing the causal link between the contravention and the loss or damage suffered.

There are technical rules governing pleadings in Part 16 of the Federal Court Rules 2011 (Cth) (Federal Court Rules). Relevantly the Federal Court Rules require a pleading to:

  • identify the issues that the party wants the court to resolve;
  • state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial but not the evidence by which the material facts are to be proved,
  • state the provisions of any statute relied upon; and
  • state the specific relief sought.

Canada Small Flag Canada

Competition damages claims typically proceed as class actions, though not always. These proceedings are commenced through a statement of claim that would give rise to a cause of action assuming all the facts pleaded are true. Meeting this requirement is a relatively low threshold.

The first major step in a class action is a motion for an order certifying the proceeding as a class proceeding and appointing a representative plaintiff. Each jurisdiction has its own rules for certification, though they are substantially similar. The thresholds for certification are addressed below in response to question 11.

Italy Small Flag Italy

No specific formalities are required as competition damages claims shall be brought before the competent civil court through ordinary civil proceedings or civil class actions according to their general procedural rules. In particular, it is not necessary for the claimant to obtain a favourable decision by the Italian Competition Authority beforehand.

To get compensation the claimant must allege and prove:

  • the anticompetitive conduct;
  • the amount of damage suffered; and
  • that the damages suffered were a direct consequence of the anticompetitive conduct.

Romania Small Flag Romania

There are no specific procedural formalities governing commencement of a competition damages claim, aside from the general formalities characterising any Court claims (e.g., lodging of the written submission with the competent Court, payment of the stamp duty, providing identification details of the parties etc.).

Also, there is no specific standard of pleading. However, since the competent Court of first instance is the Tribunal (see question 6), only a fully-qualified lawyer may plead before the Court. By way of context, under Romanian law, trainee lawyers may only plead before ordinary (first level) courthouses; upon completion of a two-year traineeship and attendance of a qualification exam, a trainee lawyer becomes a fully-qualified lawyer and may thus plead before Tribunals and Courts of Appeal. Additional professional experience is warranted to plead before the Supreme Court and the Constitutional Court (e.g., five-year experience as a fully qualified lawyer).

United Kingdom Small Flag United Kingdom

Claims can either be brought before the High Court or the Competition Appeal Tribunal (the “CAT”) (see question 6), and are subject to the procedural requirements of the Civil Procedure Rules and the CAT Rules, respectively. Proceedings are commenced by the claimant filing a claim form.

Once the claim form is filed, it must be served on the defendant. In some circumstances, permission is required to effect service on a defendant outside of the jurisdiction.

In the CAT, full details of the claim, including a statement of the relevant facts and any contentious points of law relied upon, must be included on the claim form. In the High Court, the claim form is more general, but full details are then provided in the claimant’s “particulars of claim” (which are usually served on the defendant either with, or shortly after, the claim form). A claimant’s pleadings must set out reasonable grounds for a claim that has a realistic prospect of success; otherwise the claim may be vulnerable to strike-out or summary judgment.

Colombia Small Flag Colombia

a. Individual Actions: Prior to the filing of the lawsuit, the plaintiff shall try to conciliate the controversy, except for several specific cases in which the conciliation is not needed. Once the settlement has not been possible, the plaintiff may file the pleading which shall have:

i. The identification of the judge that shall decide the case.

ii. The name and domicile of the plaintiff and the defendant.

iii. The name of the attorney.

iv. The facts that support the pleading, dully determined, classified and numbered.

v. The evidence that the plaintiff wants to be considered in the trial and the one that it wants to request.

vi. A declaration under oath of the quantified value of the damages claimed.
vii. The rule of law.

viii. The amount of the lawsuit (Colombian law distinguish between three amounts: (i) minimum amount (below USD$11,042 approximately), (ii) minor amount (between USD$11,042 and USD$41,405 approximately) and (iii) major amount (above USD$41,405 approximately). The process value determines the competent judge and the procedure and length it will take.

ix. The address and email in which the parties will receive notices.

x. The mention that the damage was caused by a practice that is restrictive of the competition according to Colombian law (Decree 2153 de 1993).

b. Collective Actions

i. Popular Actions: These actions do not have procedural formalities. The pleading shall have:

  1. The mention of the collective right or interest that is being threatened or damaged.
  2. The facts, acts, actions and omissions in which the claim it is motivated.
  3. The claims (the petition).
  4. The identification of the individual, legal entity or public authority that is allegedly accountable for the damage or threat, if possible.
  5. The evidence that the plaintiff wants to be considered in the trial and the one that it wants to request.
  6. The address in which the parties will receive notices.
  7. The name and identification of the claimant.

ii. Class Actions: These actions do not have procedural formalities. The pleading shall have:

  1. The name of the attorney and the Power of Attorney.
  2. The identification of the grantors of the PoA including their names, identification number and domicile.
  3. An estimation of the damages’ value.
  4. If it is not possible to provide the name of all the individuals of the plaintiff group, provide the criteria for their identification and define the group.
  5. The individual, legal entity or public authority that is allegedly accountable for the damage, if possible.
  6. The facts, acts, actions and omission in which it is motivated.
  7. The claims (the petition).
  8. The evidence that the plaintiff wants to be considered in the trial and the one that it wants to request.
  9. The address in which the parties will receive notices.

United States Small Flag United States

Civil suits, including private antitrust actions, are generally commenced via the filing of a complaint and service of process in accordance with applicable state or federal civil procedure rules. For cases brought in the federal courts of the United States, plaintiffs must state a plausible claim for relief under Rule 8 of the Federal Rules of Civil Procedure when filing suit, leading to a “reasonable expectation that discovery will reveal [the necessary] evidence,” or be subject to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Twombly, 550 US at 545; see also Ashcroft v Iqbal, 556 US 662 [2009]. A plaintiff’s complaint must be accompanied by factual allegations, rather than mere legal conclusions. Ashcroft, 556 US at 662.

To state a viable claim for relief under Section 1 of the Sherman Act, a plaintiff must allege the existence of an agreement in restraint of trade, and that the agreement produced anti-competitive effects (such as reduced output, increased priced, reduced quality, or by showing that the defendants possessed market power) within a relevant product and geographic market.

Updated: August 7, 2019