What is the measure of damages? To what extent is joint and several liability recognised in competition damages claims? Are there any exceptions (e.g. for leniency applicants)?
Belgian law turns on the principle that damages should place the injured party in the same position it would have found itself in but for the event causing the loss. On the one hand, this means that claimants can recover a wide range of damages, including damages for direct costs that have actually been incurred, loss of profit, loss of opportunity, interests, non-economic (moral) damages and other indirect losses. On the other hand, since all a victim is entitled to obtain are damages that put it in the same position it would have found itself in, punitive damages cannot be awarded. There is no cap as to the amount of damages recoverable under Belgian law.
Where the victim has committed a fault which is at least in part the cause of the loss, the loss will be distributed in accordance with the relative responsibility of each fault for the loss. Punitive damages are not available under Belgian law.
Undertakings and/or associations of undertakings which have breached competition law by their joint action can be held jointly and severally liable for the losses caused by that infringement. The claimant may, in those circumstances claim indemnification for its entire loss from one of the infringers. The paying infringer may then in turn claim contribution in that payment from the other liable parties, each having to contribute in proportion to the gravity of the contribution of their fault to the causation of the loss. The risk of insolvency of one of the liable parties is borne by the other liable parties, such that where one of the liable parties defaults on his or her contribution in the damages, the others will have to distribute this loss among themselves. Thus, where multiple parties are held liable, the injured party is protected against the insolvency of one of the liable parties, since it can claim full payment from the most solvent liable party.
However, this joint and several liability is limited in several regards:
- First, if the infringing party is an SME in the sense of Recommendation 2003/361/EC of the European Commission of 6 May 2003 or has obtained full leniency, it can only be held jointly and severally liable for the losses suffered by its direct or indirect customers or suppliers. For the losses suffered by the other victims of the infringement, that entity can only be held to pay to the extent that those victims cannot obtain full payment from the other jointly and severally liable infringers. However, this exception does not apply to the SMEs which have either (i) played a leading role in the infringement or have forced other infringers to participate or (ii) have already been held guilty of a competition infringement before.
- Second, as far as contribution claims by jointly and severally liable infringers are concerned, an infringer which has received full immunity from fines cannot be held to pay a contribution which is larger than the amount of the losses suffered by its own direct or indirect customers or suppliers. If, however, his infringement has caused losses to other parties, the amount of his contribution cannot exceed the amount which corresponds to his relative responsibility for that loss.
- Third, where a claimant enters into a settlement with one of the infringers and reserves its claim against the other infringers, its claim against these other jointly and severally liable infringers is reduced by the share of the losses caused by the settling infringers. If the other infringers are subsequently ordered to pay damages to the claimant, they will be unable to recover a contribution in those damages from the settling infringer. If the other infringers are not sufficiently solvent to pay those damages to claimant, the claimant may still recover those damages from the settling infringer, unless agreed otherwise in the settlement agreement.
Quantification of competition damages is one of the most challenging aspects of a competition damages claim. That is because damages must be demonstrated by the claimant through evidence and relate to either an actual loss or forfeited profits. Following such evidence, the judge may either determine the amount of damages to be awarded or order the quantification of damages in separate proceeding – case in which the court may seek for an expert to determine the amount to be paid.
In case of multiple defendants having contributed to the anticompetitive conduct, liability is joint and several without apportionment – i.e. each cartel member may be held liable for the entire cartel-related damage, including leniency applicants (articles 186, 927 and 942, sole paragraph, of the Civil Code). However, in this case a defendant may bring an action against the other defendants seeking reimbursement of the amount paid for damages she did not cause. Moreover, as detailed on question 25, a Senate´s Bill is proposing exemption for the offender who is party to a cease-and-desist or leniency agreement from the payment of damages caused by other members of the cartel.
- Both AML and the SPC AML Interpretation are silent on damages calculation in competition damages claims. Nevertheless, when the SPC AML Interpretation was first issued on May 8, 2012, the head of the SPC IP division elaborated on several issues related to damages calculation in a press release. According to the press release, the damage caused by monopolistic acts as stipulated in the AML should be considered actual loss. Furthermore, the discretionary method for damages calculation commonly used in IP cases could also be applied to competition damages claims, which means that the courts may determine the reasonable amount of damages at their discretion by considering, among others, factors such as the nature, extent and duration of the alleged monopolistic conduct. In addition, the SPC AML Interpretation also stipulates that the courts may, upon the plaintiff’s request, include in the damages reasonable expenses incurred by the plaintiff in the course of investigating and curbing the monopolistic practice.
For instance, in the case of Huawei vs. ID, both parties were unable to produce neither evidence proving the actual loss suffered by Huawei, nor evidence proving how much profit IDC earned from the infringement. The court at its discretion, after considering the relevant factors (including the facts of the case, the nature of infringement, degree of subjective fault, the duration of the infringement, the damage effect, and the reasonable expenses incurred by Huawei in order to investigate and stop the relevant abusive conduct), ordered IDC to pay damages of RMB 20 million to Huawei.
As of this writing, no competition damages actions in which the courts have applied any specific methodology for damages calculations has been found. Nonetheless, it is noteworthy that there are several pending competition damages actions, and it still remains to be seen whether the courts will apply specific methodology for damages calculations in such cases.
- Joint and several liabilities are recognised under the PRC law. In competition damages claims, if two or more defendants jointly commit an infringement that causes others to suffer damages, they shall bear the liabilities jointly and severally. The amount of damages for which the defendants should be jointly and severally liable shall be determined pursuant to their respective degree of responsibility. If it is impossible to allocate the liability for damages among the defendants, the defendants shall bear the liability equally.
- PRC competition rules are also silent on whether leniency applicants would be given any beneficial treatment in follow-on competition damages claims. However, it is a common understanding that a leniency applicant will not be given immunity from civil liabilities. Having said that, it is also noteworthy that, according to the Draft Guidelines for the Application of Leniency Regime to Horizontal Monopoly Agreements (“Draft Leniency Guidelines”), the materials (such as reports submitted by undertakings for leniency application and documents generated therefor) shall be kept confidential and shall not be used as evidence for relevant civil proceedings unless otherwise stipulated by law. Furthermore, according to the Draft Guidelines on Commitment Procedure (“Draft Commitment Guidelines”), the AML enforcement agency’s decisions on suspension or termination of investigation shall not be interpreted as an affirmation that such suspect monopolistic conduct is in violation of the AML. Nevertheless, it remains uncertain whether the above-mentioned provisions would be adopted in the final versions and how they will operate in practice in competition damages claims.
4.1. As mentioned above (see question 3), the measure of damages is to reinstate the claimant to the position he/she would have been if the breach had not occurred.
In terms of joint and several liability, the law recognizes that undertakings or associations of undertakings that have breached the Law through joint behaviour, are jointly and severally liable for the harm caused by the infringement of Competition Law.
4.2. Irrespective of the above and without prejudice to the right of full compensation where the infringer is a small or medium-sized enterprise (the “SME”), the infringer shall be liable only to its own direct and indirect purchasers subject to the following conditions:
a. its market share in the relevant market was below 5 % at any time during the infringement of competition law; and
b. the application of the normal rules of joint and several liability would irretrievably jeopardise its economic viability and cause its assets to lose all their value.
The above-mentioned conditions (a) and (b), shall not apply where:
(i) the SME has led the infringement of competition law or has coerced other undertakings to participate therein; or
(ii) the SME has previously been found to have infringed competition law.
4.3. Additionally, by way of derogation to 4.1. above, an immunity recipient is jointly and severally liable as follows:
(a) to its direct or indirect purchasers or providers; and
(b) to other injured parties only where full compensation cannot be obtained from the other undertakings that were involved in the same infringement of competition law.
The amount of contribution of an infringer which has been granted immunity from fines under a leniency programme shall not exceed the amount of the harm it caused to its own direct or indirect purchasers or providers.
Furthermore, to the extent the infringement of competition law caused harm to injured parties other than the direct or indirect purchasers or suppliers of the infringers, the amount of any contribution from an immunity recipient to other infringers shall be determined in the light of its relative responsibility for that harm.
Measure of Damages
Article 221 of the ECC provides that “The judge shall fix the amount of damages, if it has not been fixed in the contract or by law”. Accordingly, the Court may award damages equal to the substantiated harm incurred by the claimant.
Joint and Several Liability
As a general rule, joint and several liability is recognized under Egyptian law. In this regard, Article 169 of the ECC provides that “When several persons are responsible for an injury, they are jointly and severally responsible to make reparation for the injury. The liability will be shared equally between them, unless the judge fixes their individual share in the damage due”. Therefore, it may be concluded that persons may be jointly and severally liable for compensation damages claims.
The ECL provides for a leniency program for those persons in breach who notify the ECA of the violations and provide information on the persons involved or the evidence that may prove the violations. However, this leniency program applies in the context of criminal liability and not in the context of competition damages claims. This means that persons may claim competition damages even if the liable person benefited from the leniency program. The person then needs to prove fault, damage and causal link as the fault may not be established by the ECA due to the leniency program.
Measure of damages
Under French law, damages are not punitive but compensatory, i.e. victims of an infringement should be fully compensated but not over-compensated (see above the answer to Question 3).
In principle, any victim that has suffered harm as a result of an infringement of competition law is entitled to claim compensation for its actual loss and the loss of profit, plus interest.
In practice, the types of recoverable damage resulting from an infringement of competition rules include (article L. 481-3 FCC):
- The loss resulting from:
- the incurred overcharge corresponding to the difference between the price actually paid by the damages claimant for the goods or services concerned by the infringement and the price that he would have paid absent this infringement, subject to the potential partial or total passing on of this overcharge to its direct contracting parties (customers); or
- the lower price paid by the infringer(s) to the damages claimant;
- The lost profit suffered by the damages claimant resulting from e.g.:
- the reduction in sales related to the partial or total passing on of the incurred overcharge to its direct contracting parties (customers); or
- the ongoing effects of the reduced prices that the claimant had to apply as a result of the infringement;
- The loss of opportunity; and
- The moral prejudice.
Although article L. 481-3 FCC is only applicable to damages claims based on infringements of competition law that occurred after 11 March 2017, French courts already recognise such types of damage as recoverable.
The damages claimed should not be purely hypothetical but personal, direct and certain. Claimants usually base their claim on economic evidence. In this respect, they are generally assisted by economic experts to help them calculate the amount of their damage. Typically, in damages actions related to a cartel or an abuse of a dominant position, economic experts provide reports based on economic data and carry out a counterfactual analysis relevant to the competition law infringement. The counterfactual analysis provides a comparison between the situation as observed (i.e. where the infringement of competition law occurred) and a counterfactual situation (i.e. a situation where the infringement would not have occurred) (see below the answer to Question 17).
In the case of collective actions (see below the answer to Question 11), claimants may only sue for compensation for material loss, as opposed to non-pecuniary loss (article L. 623-2 of the French Consumer Code (consumer code)).
Joint and several liability
As a rule, companies that participated in a competition law infringement (whether or not established by a decision of the FCA or the Commission) are jointly and severally liable for the entirety of the damage caused by such infringement (article L. 481-9 FCC, introduced into French law as part of the implementation of the Damages Directive).
An infringer who has been ordered to pay damages to a claimant may however recover a contribution from any other infringer, the amount of which shall be determined in the light of the seriousness of their respective infringements and of their causal role in the occurrence of the damage (article L.481-9 FCC, introduced into French law as part of the implementation of the Damages Directive).
There are two exceptions to the joint and several liability of infringers which were introduced into French law as part of the implementation of the Damages Directive (articles L. 481-10 and L. 481-11 FCC):
- Small and Medium-sized Enterprises (SMEs) (i.e. undertakings with fewer than 250 employees whose turnover or balance sheet does not exceed EUR 50 million or EUR 43 million respectively (article 3 of Decree No. 2008-1354 of 18 December 2008 on the criteria for determining the category to which undertakings belong for the purpose of statistical and economic analysis)). SMEs are only liable to their own direct and indirect contracting parties (customers or suppliers) where:
- their market share in the relevant market was below 5 % at any time during the competition law infringement; and
- the application of joint and several liability would irreversibly jeopardise their economic viability and cause their assets to lose all their value.
- where the SME has instigated the relevant competition law infringement or has coerced other undertakings to participate therein; or
- where the SME has previously been found to have infringed competition law.
- Immunity recipients are only liable to their direct and indirect contracting parties (customers or suppliers). However, by way of exception, immunity recipients can also be liable for the damage caused to other injured parties if these victims are unable to obtain full compensation from the other companies that were involved in the same competition law infringement.
By way of exception, SMEs remain jointly and severally liable for the entire damage in the two following cases:
The above provisions relating to SMEs and immunity recipients are only applicable to damages claims based on infringements of competition law that occurred after 11 March 2017.
German law follows the principle of full compensation for damage that has actually occurred. It does not allow for punitive or treble damages.
The existence of damage itself and the causality of the alleged anticompetitive behaviour need to be proven by the claimant in accordance with section 286 ZPO. The court is to decide, at its discretion and conviction, based on rules of logic, empirical principles and natural law, taking account of the entire content of the hearings and the results obtained by evidence being taken (for more details, see question 8).
If the court is convinced that a claimant did suffer damage and the claimant provides sufficient facts that enable the court to estimate the approximate amount of damages, it will do so and thus exonerate the claimant from having to conclusively prove the specific extent (section 287 ZPO, now expressly referred to in section 33a para 3 GWB). The estimate is to be made taking into account all known facts and must represent the minimum extent of damages realistically incurred (for more details, see question 8). A claimant may still show that he has actually incurred larger damage. In addition, section 33a para 3 GWB now allows courts to consider the (pro rata) profits made by the defendant when estimating the cartel-induced damage.
Since the cartel agreement and the implementation of the cartel are a jointly committed tort law infringement, the cartelists are jointly and severally liable (for conduct after 26 December 2016, this is now specifically set out in section 33d GWB; for prior conduct this follows from the general tort provisions in sections 830 and 840 BGB). A leniency applicant may benefit from liability limitations, though (see question 18).
Damages are generally compensatory in nature. Damages in competition damages claims would generally be awarded to place the claimant in the position in which he or she would have been had the contravention of the conduct rule not taken place. It is unclear whether the Competition Tribunal would be prepared to award exemplary or punitive damages in competition damages claims, but such awards are rarely made in civil proceedings in Hong Kong and only made in very extreme circumstances.
Currently, no competition damages claims have been filed to the Competition Tribunal, such that the extent to which joint and several liability is recognised in competition damages claims remains to be seen. However, joint and several liability is generally recognised in Hong Kong civil proceedings. Under the Civil Liability (Contribution) Ordinance, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise). The Competition Tribunal would be expected to recognise joint and several liability in competition damages claims.
The Competition Ordinance does not provide for exceptions to liability in competition damages claims. Under the Competition Commission’s Leniency Policy for Undertakings Engaged in Cartel Conduct (November 2015), leniency applicants are required to agree to and sign a statement of agreed facts admitting to its participation in the cartel, and to make a joint application with the Competition Commission to the Competition Tribunal for an order declaring that the leniency applicant has contravened the prohibition against anti-competitive agreements under the Competition Ordinance. The Competition Tribunal’s order declaring such contravention would allow claimants to commence a follow-on action against the leniency applicant.
The measure of damages in a tort claim based on violation of Competition Law is identical to other tort sectors customary in Israel and sets its aim on allowing the plaintiff which suffered the damage to be in the place it would have been if there were no infringement of the Law.
In practice, In order to prove the amount of compensation to which it is entitled, the plaintiff must prove the damage caused to him, most commonly by an economic expert opinion.
As in the general tort law, the courts recognize the defendants' liability, jointly and separately, when required. The law recognizes the contributory fault of the plaintiff, and recognizes the principle of reducing the damage, but different behavioural characteristics such as leniency applicants have no effect on the amount of the damage. In fact, a leniency applicant under the Competition Law will receive no benefit whatsoever in a civil claim for damages.
See Question 17 for the measure of damages.
If more than one person has inflicted damage on others by their joint tortious acts, each of them shall be jointly and severally liable for compensation for such damage (Article 719(1) of the Civil Code). Since violators involved in a price-fixing cartel or bid-rigging are jointly inflicting damage, each of the violators assumes joint and several liability and therefore is independently liable for damages for the entire amount of damage. A violator that has provided compensation to claimants may demand compensation from the other violators according to the degree that each of the other violators has contributed to the total damage to the claimants.
See Question 2 and 16 for leniency applications.
The main principle is that damages are calculated on the basis of actual loss. If an accurate (concrete) calculation is impossible or very difficult, the court has the discretion to estimate damages in the abstract. Fines imposed by national competition authorities are not taken into account.
As a general principle undertakings are jointly and severally liable (article 6:193m DCC), but there are exceptions for small and medium-sized enterprises and for successful immunity applicants.
In principle, successful immunity recipients can only be held jointly and severally liable for damages incurred by their own direct or indirect purchasers. Only when claimants cannot obtain full compensation from the other cartel members, they can claim recourse from the immunity recipient (article 6:193m paragraph 4 DCC). Article 6:193n DCC provides that the contribution of an immunity recipient, in relation to the other offenders involved in the infringement, to the compensation for the harm suffered by their direct and indirect purchasers and suppliers shall not exceed the compensation for the harm suffered by its direct and indirect purchasers and suppliers, in proportion to the extent to which the circumstances imputable to it have contributed to the harm.
Measure of damages
The PCA does not set out specific guidelines on the quantification of damages. Thus, following the Philippine Civil Code, actual and compensatory damages are recoverable, and awarded based on “pecuniary loss suffered [as] duly proved;” they cover the value of the loss suffered, as well as lost profits. If the cause of action constitutes a tort action, the infringer may be liable for all damages that are the “natural and probable consequences” of the act or omission complained of.
In addition, the injured party may recover:
(a) "Moral" damages, if it can show that it suffered "physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury." The amount of the moral damages is determined by the court, which has the power to reduce claims for excessive moral damages.
(b) Exemplary (or punitive) damages , which are awarded to serve as a deterrent to future parties from committing a similar offense. However, these cannot be recovered in all cases, and may be awarded only if the act was tainted with bad faith.
(c) Attorney’s fees and legal costs. However, these are awarded only under certain circumstances (see item 21 below). Moreover, awards of attorney's fees and legal costs by Philippine courts are generally minimal.
Joint and several liability
The PCA does not expressly provide for joint and several liability (i.e., solidary) for violations of the PCA.
However, depending on the circumstances, violators may arguably be considered as joint tortfeasors under Philippine law. Joint tortfeasors are persons who "command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit." By way of example, acts committed by the cartel participants may arguably be considered tortious, considering that they would result in damage to another person.
Under the Philippine Civil Code, the liability of joint tortfeasors is joint and several. It has yet to be seen whether a Philippine court will treat, as tortious, causes of action arising from violations of the PCA.
 - Civil Code, Article 2199.
 - Civil Code, Article 2217.
 - Yuchengco v. Manila Chronicle Publishing Corporation, GR No. 184315, 28 November 2011
 - Civil Code, Article 2229.
 - Civil Code, Article 2233.
 - People v. Velasco, GR No. 195668, 25 July 2014.
 - Civil Code, Article 2194.
According to general rules of civil compensatory liability in Polish law, the redress of damage may involve both losses which the injured party has suffered, as well as lost profits, i.e. profits which could have been obtained, if no damage was inflicted.
Polish civil law recognises the rule of joint and several liability for competition law infringements, classified under the Polish civil law as torts. According to the general rule, if several persons are responsible for damage caused by a tort, all infringers are jointly and severally liable for the damage caused by that infringement. This means that the claimant may seek full compensation from all co-infringers or either of them. The person who has redressed the damage may demand from the infringers the return of an appropriate part, as the case may be.
Some limitations to the general rules apply to small and medium-sized enterprises (SMEs) as well as to leniency recipients. An SME will only be liable to its own direct and indirect purchasers and providers provided that its market share in the relevant market was below five per cent at any time during the infringement, while the application of the normal rules of joint and several liability would irretrievably jeopardise its liquidity or cause loss of value of its assets. At the same time the SME could not have a leading role in the infringement nor coerced other undertakings to participate in the infringement as well as infringed competition law for the first time. In turn, leniency recipients are jointly and severally liable only to its direct or indirect purchasers or providers, or if full compensation cannot be obtained from the other co-infringers.
Law 23/2018 sets forth a general principle according to which the liability extends to the amount of damages arising from any of the unlawful conducts referred to under Question 1 above, notably (i) collusive behaviour, (ii) abuse of dominant position and (iii) abuse of economic dependence. In any case, the Portuguese rules also clarify that loss of profits arising from the infringement, as well as interest due from the date of the decision until full payment, are also eligible for compensation together with the damages caused directly by the same infringement.
Whenever any of the conducts referred to in Question 1 is carried out by two or more entities, as a rule all those entities will be jointly and severally liable. Nevertheless, under paragraph 1 of Article 5, whenever any of such entities is a “small and medium-sized enterprise” (“SME”) its liability will be limited towards (i) claimants whose damages cannot be fully compensated by the other entities that were involved in such breach, and/or (ii) towards its own direct or indirect customers and/ or suppliers, if: (a) the infringement occurs in a market where the SME in question holds less than 5% of market share throughout the duration of the infringement, and (b) if joint and several liability jeopardises the financial solvency of this entity. This exception is not applicable if this SME led the infringement, or compelled others to take part in it, nor if it has already been convicted for other competition law infringements.
Under the Portuguese leniency rules, a similar regime is applicable to leniency applicants, who will only be held liable towards (i) claimants whose damages cannot be fully compensated by any other entity, and/or (ii) towards its direct or indirect customers and/ or suppliers.
Whenever joint and several liability is applicable, a recourse right arises between the entities in question up to the limit of their own share of liability. Unless proven otherwise, each entity’s liability share will be calculated based on their average market shares throughout the duration of the infringement in the relevant market(s). The liability share for each entity can be determined by the role that they played in the infringement. As for leniency applicants, it should also be noted that their liability is capped by the amount of damages caused to their own direct or indirect customers or suppliers.
If the infringement was perpetrated by more than one person, all the persons involved are jointly and severally liable to the damaged party, regardless of the recovery actions that may apply (section 65, Competition Law).
The liable individuals or legal entities may be entitled to an exemption or reduction of the obligation to compensate the claimant, if the leniency programme in chapter VIII of the Competition Law applies. However, an individual or legal entity that used the leniency programme continues to be jointly and severally liable to its direct or indirect purchasers or suppliers, and other damaged parties, if it is impossible to obtain full compensation from the other companies/individuals that were involved in the same violation.
The defendant may file a recovery claim against other infringing parties. The Competition Law is not clear enough about on the statute of limitation term for such claims. The most conservative option is two years counting as from the date that defendant paid the damages. However, there are grounds to support a five-year term of statute of limitation. So far, there are no relevant precedents clarifying this issue.
A prerequisite for receiving compensation is that the competition prohibitions were infringed wilfully or through neglect. Compensation for damage caused by an infringement includes compensation for actual loss (financial loss or loss of, or damage to, property) (damnum emergens) and loss of income (including loss of interest) (lucrum cessans). The objective of damages awards for infringement of competition law is to restore the claimant’s financial situation to that which it would have been had the infringement never occurred. Therefore, when setting damages, the courts will compare the claimant’s actual financial situation with the hypothetical financial situation absent the infringement. Compensation will also reflect other detrimental effects on the plaintiff’s business, even those of a more long-term or difficult-to-quantify nature (such as loss of goodwill or detrimental impact on an intellectual property right).
The amount of the damages can be reduced if the plaintiff has contributed, by fault or negligence, to the injury sustained. If the plaintiff has benefited from the infringement, this too would have an impact on the amount of damages awarded. Compensation will also be adjusted for any settlement or agreement between the parties. Fines imposed by competition authorities, however, are not taken into account when determining damages.
The Competition Damages Act stipulates that interest will accrue on the compensation amount, due from the time the damage occurred. The interest rate is 2 per cent above the reference rate of the Central Bank from the time the damage was caused until legal proceedings to claim compensation were initiated. Thereafter, the interest rate is 8 per cent above the reference rate.
As a general rule, if there is more than one infringer, the infringers are jointly and severally liable for damages caused by their infringement. Under Swedish law, the term 'joint and several liability' means that if several parties are liable for damage caused by them, then a claim can be brought against any of them for the same amount as if that party had been liable for the damage (i.e., the whole amount). However, the Competition Damages Act includes certain limitations on joint and several liability, such as when the infringer’s market share, at any point in time during the infringement, is below 5 per cent or where the infringer has been part of a leniency process. It is also not possible to be jointly liable for a damage if one party enters into a settlement with the party seeking damages.
The infringers' part of the damage shall be calculated considering the respective infringers comparative responsibility for the damage that was caused by the infringement according to Chapter 4, Section 1 of the Competition Damages Act.
A leniency applicant is only jointly and severally liable for damages that have occurred for direct or indirect buyers or suppliers and other damages parties, unless the damage can be covered by any of the other infringers.
The Competition Act states that the difference between what the claimants were to pay if competition were not restricted and the price they paid can be requested as damages. Under certain conditions, the claimant could be awarded three times the material damages incurred or the profit gained or to be gained by the undertaking(s) that caused the damages. The wording of the Competition Act indicates that competitors affected by the restriction of competition could request all of the damages they incurred from the infringing undertaking(s). The Competition Act provides that all of the anticipated profits of the undertakings that incurred damages and their past financial statements could also be taken into consideration for the calculation of the damages.
Under the Competition Act, undertakings that jointly caused a particular damage will be jointly and severally liable to claimants for that damage. Leniency applicants are not protected from competition damages claims.
What is the measure of damages?
The claimant is entitled to recover an amount of damages which reflects the actual loss or damage suffered as a result of the impugned conduct. Damages are compensatory and intended to place the claimant, as far as possible, in the position in which they would have been, had the impugned conduct not occurred.
A claimant cannot seek exemplary or punitive damages.
The Federal Court can award interest on damages.
To what extent is joint and several liability recognised in competition damages claims?
Joint and several liability is recognised. A person will be liable for a claimant's loss or damage if their contravening conduct materially contributed to the loss or damage. Accordingly, if there are several defendants involved in the contravention of Part IV which caused the claimant's loss, each contravener will be liable jointly and severally.
Loss or damage can be recovered against the person whose conduct resulted in the loss or damage and others 'involved' in the contravention. A person will be involved in the contravention if that person was aware of the essential facts and matters constituting the contravention and aided, abetted, counselled, procured or induced the contravention, was in any way directly or indirectly knowingly concerned in or a party to the contravention or conspired with others to effect the contravention.
Are there any exceptions (e.g. for leniency applicants)?
No. While the cartel participant who is the first to report cartel conduct to the ACCC may be eligible for civil and/or criminal immunity or leniency under the ACCC's Immunity and Cooperation Policy for Cartel Conduct (Immunity Policy), civil immunity is restricted to ACCC initiated civil proceedings and will not protect a contravener from a private action for damages.
Unlike in the United States, the treble damages principle does not exist in Canada. Rather, in accordance with section 36 of the Act, the measure of damages available in competition litigation are the actual losses proved to have been suffered by the claimant and investigative costs.
Immunity and leniency applicants receive immunity or lenient treatment in regard to criminal prosecution from the Public Prosecution Service of Canada and the Competition Bureau for cooperating with an investigation. However, such applicants receive no immunity or leniency in competition damages claims and are liable for the full amount of damages under section 36.
Although there has been no definitive answer by the Supreme Court of Canada, the joint and several liability principle is likely recognized in competition damages claims.
Italian courts award only compensatory damages as punitive damages are not regulated by law and therefore are not awarded by them.
Generally speaking, co-infringers are jointly and severally liable for their anticompetitive conduct and therefore shall compensate damages accordingly.
However there are two exceptions to the above principle that were set out by L.D. 3/2017:
- unless they played a leading role in the anticompetitive conduct, small and medium-sized enterprises as defined in Recommendation 2003/361/CE (SMEs) will be jointly and severally liable only towards their direct and indirect purchasers if their market share were less than 5% while the violation persisted and if a joint and several liability standard will cause irreparable damage to their economic strength and the loss of their assets value;
- beneficiaries of a leniency programme will be jointly and severally liable only where full compensation for their damages cannot be obtained from the other businesses involved in the same anticompetitive conduct.
As a general rule, undertakings having infringed competition law through joint behaviour are jointly and severally liable for the harm caused. Each of these undertakings is bound to provide full compensation for the harm, the injured party having the right to bring a claim for the full amount against any of the participants to the infringement, at its choice.
There are, however, a series of exceptions.
SMEs. A first exception refers to small or a medium-sized enterprise (SME) which under certain conditions (i.e., reduced market presence – below 5% throughout the infringement period, and jeopardy to their economic viability) is only liable (i) to its own direct or indirect purchasers, and (ii) to other injured parties, only when full compensation cannot be obtained from the other infringing undertakings. The exception is not applicable when the SME has either (i) coerced other undertakings to participate in the infringement, or (ii) the SME is a repeated offender of competition law.
Immunity recipients. A second exception refers to immunity recipients. An immunity recipient may only be held jointly and severally liable: (i) to its direct or indirect purchasers or suppliers, and (ii) to other injured parties, only where full compensation cannot be obtained from the other participating undertakings.
Thereafter, an infringer which has paid the full damage to a claimant may redress against the other infringers, pro rata to their relative responsibility for the harm caused by the infringement. The contribution of an immunity recipient shall not exceed the harm it caused to its own direct or indirect clients or suppliers.
If the infringement caused harm to injured parties other than the direct or indirect clients or suppliers of the infringers, the amount of any contribution from an immunity recipient to other infringers shall be determined in light of its relative responsibility.
 - Within the meaning set forth by the Commission Recommendation 2003/361/EC.
The general rule is that damages are compensatory and should put the claimant in the position it would have been in had the breach of competition law not occurred. In order to assess damages, the courts consider the position of the claimant absent the infringement by constructing a hypothetical reference scenario, or “counterfactual” against which the actual situation can be compared. This is a complex exercise and the courts will typically rely on expert evidence to assist with quantification (see question 13 below).
Before implementation of Directive 2014/104/EU (the “Damages Directive”) on 9 March 2017 (the “Implementation Date”) the courts could award punitive or exemplary damages in limited circumstances where the defendant had not been fined by a competition authority. Such damages are no longer available in claims where the relevant infringement started on or after the Implementation Date.
The principle of joint and several liability is recognised in English law: a claimant who has suffered loss as a result of a cartel can claim its entire loss from any one of the cartelists. However, the implementation of the Damages Directive has introduced limitations on the principle (see, for example, question 16 below).
For both individual and collective actions, the measure of the damages requires the application of a principle called “comprehensive reparation”, which entails that the proved damage shall be compensated as long as such damage is certain and direct. Therefore, it shall be a standard of proof of almost 100%. Additionally, the damage shall only be compensated by the individual or entity that directly performed the conduct that caused the damage.
If there are several accountable individuals or entities (meaning that there are several individuals or entities that directly performed the conduct(s) that caused the damage), they will have a joint and several liability according to law, and there are no exceptions to this rule.
Private plaintiffs are entitled to treble damages if they prevail on their federal antitrust claims. 15 USC § 15 . In addition to recovering their attorney’s fees, plaintiffs may also recover interest on actual damages “if the court finds that the award of such interest … is just in the circumstances.” Id.
Plaintiffs are not required to sue all alleged conspirators when bringing an antitrust claim under federal law, as antitrust conspirators are “jointly and severally liable for all damages caused by the conspiracy.” William Inglis & Sons Baking Co v ITT Continental Baking Co, 668 F2d 1014, 1052–53 [9th Cir 1981]. Moreover, under federal antitrust laws, a defendant does not have a right of contribution from other defendants if found liable for antitrust violations.
The US Department of Justice [DOJ] Antitrust Division’s leniency policy provides full criminal immunity to the first company or individual involved in a conspiracy to self-report its illegal conduct. The Antitrust Criminal Penalties Enhancement and Reform Act [ACPERA], Pub L No 108-237, § 213(a)-(b), 118 Stat 661, 666-668 [June 22, 2004], as amended by Pub L No 111-190, 124 Stat 1275 [June 9, 2010], codified as amended at 15 USC § 1, adds that an antitrust leniency applicant that has provided “satisfactory cooperation” to civil plaintiffs is responsible for only the actual damages attributable to the commerce done by the applicant in the goods or services affected by the violation, and is otherwise exempt from treble damages and joint and several liability.