What remedies are available to claimants in competition damages claims?

Competition Litigation

Belgium Small Flag Belgium

A full range of remedies is open to claimants in competition damages claims. In contractual matters, the claimant can ask for the full performance of all contractual obligations by the defendant, if need be on pain of penalty payments, which may fall due periodically (e.g. each day on which the defendant does not perform the contract in case of an abusive termination of a supply agreement). If the contract cannot be performed, the claimant can request damages instead. In case of an extra-contractual claim, the claimant can obtain damages and/or an injunction for the defendant to act in a certain way.

Furthermore, claimants may also bring cease-and-desist proceedings, which are a type of accelerated proceedings after which the court may order a defendant to cease an act or omission which it considers an infringement of competition law. However, no damages may be awarded in this type of proceedings.

During the proceedings to obtain relief, the claimant can safeguard his rights by obtaining interim relief from the court. Interim relief measures may consist of any measure which safeguards the rights and interests of the parties until the court has rendered a final decision on the merits, such as, for instance, the temporary continued performance of a contract or the temporary abstention from an act. They may not, however, amount to a final or irrevocable settlement of the parties’ situation – interim measures must therefore always be reversible.

Brazil Small Flag Brazil

According to Article 47 of the BCL, those injured by an anticompetitive conduct may sue to seek an (i) injunction to cease the anticompetitive practice, and/or (ii) to recover damages.

With regards to injunctions and interim relief, the claimant must show irreparable harm looms, unless the relief is granted, that the remedy is necessary to protect the claimant’s rights and that the effects of such relief are reversible if the claims are eventually defeated.

China Small Flag China

Damages and injunctions are available to the claimants in competition damages actions in PRC. The AML does not limit the types of remedies for injuries arising out of monopolistic conduct, and thus in principle, the various civil liabilities (e.g., cessation of infringement, exclusion of hindrance, elimination of danger, restoration of property, restitution of the original state, compensation for loss, apology) set forth in the General Rules of Civil Law (“GRCL”), Tort Liability Law (“TLL”) and Contract Law (“CL”) are all applicable in competition damages claims. However, considering the particulars of monopolistic conducts, certain types of liabilities may neither be appropriate nor available for competition damages actions (e.g., exclusion of hindrance, elimination of danger, restoration of property, restitution of the original state, and apology), and the civil liabilities for monopolistic conduct typically include cessation of infringement and compensation of loss. This is also confirmed by the Provisions of the Supreme People’s Court on Application of Laws in the Trial of Civil Disputes arising from the Monopolistic Practices (“SPC AML Interpretation”).[2]

[2] - Art. 14 of the SPC AML Interpretation provides that the courts may order the defendant(s) to cease infringement, compensate for loss, etc.

Cyprus Small Flag Cyprus

Pursuant to Law 113(I)/2017, the remedy provided to claimants in competition damages claims is to fully reinstate the claimant to the position he/she was in if the breach had not occurred, by awarding general and/or special damages and/or loss of profit plus payment of interest which from the date the damage was caused.

Egypt Small Flag Egypt

Claimant may claim material and moral damages based on the harm incurred by her/him due to the defendant act, this also includes damages incurred by the claimant due to his loss of profit.

France Small Flag France

The main type of remedies available to claimants in competition damages claims are damages.

It must be noted that there is an important distinction between public and private competition law enforcement actions under French law.

Competition damages claims (i.e. private actions) are introduced by those who have suffered from anticompetitive practices. These actions are thus aimed at compensating the claimant(s)’ damage which was caused by anticompetitive practices. French courts therefore only award compensatory damages. Punitive damages are not available.

Conversely, public actions, which are initiated by public bodies such as the FCA or criminal prosecutors, are aimed at identifying and sanctioning anticompetitive behaviours and usually result in large punitive fines being imposed on the infringing parties (up to 10% of the worldwide annual turnover of infringing corporate groups and up to four years of imprisonment and 75,000 euros for individuals).

This distinction has two important consequences:

  • Damages awarded in private actions are only aimed at putting the victim of an antitrust infringement in the same situation as if the infringement had not occurred; and
  • Fines imposed in public actions are not taken into account by French courts when awarding remedies in private actions as they are strictly focused on compensating the claimant(s)’ damage.

Germany Small Flag Germany

Any party that is affected by an infringement of competition law may bring claims for cease-and-desist and removal as well as claims for damages against the cartelist. Insofar as a claimant is unable to determine the precise scope of its competition damage claims, it is possible to start off the proceedings with motions for declaratory relief and for disclosure of relevant documentation or information required to substantiate or quantify its claims. In the past, disclosure request haven often proved to be unsuccessful, yet in the course of the implementation of EU Damages Directive, the German legislator introduced a ‘right to have evidence surrendered and information disclosed’ (section 33g of the GWB, see for more details question 21).

In addition, interim remedies are available, ie preventive measures and measures for cease-and-desist and removal can be brought in front of the court.

Hong Kong Small Flag Hong Kong

Under section 142 of the Competition Ordinance, the Competition Tribunal has the same jurisdiction to grant remedies and reliefs, equitable or legal, as the Court of First Instance. This includes remedies for damages, specific performance, injunctions, declarations and orders for an account of profits.

In addition, the Competition Ordinance provides for a series of orders that may be made by the Competition Tribunal, such as orders declaring agreements in contravention of a conduct rule to be void or voidable, orders requiring a person who has contravened a competition rule to take steps for restoring the parties to a transaction to a position in which they were before the transaction was entered into, orders prohibiting the withholding of goods or services from any person, orders requiring that any person or class of person be given access to goods, facilities or services. The full list of such orders is available in Schedule 3 of the Competition Ordinance.

Israel Small Flag Israel

The remedies that can be requested in the framework of a claim for competition damages are varied. First and foremost, most commonly the main remedy which is required in a competition case is damages. In addition, the court can render various remedies such as injunctions (for instance, imposing a duty on the defendant to continue to provide a service) or to issue a declarative order (for instance, a declarative order stating that an illegal restrictive arrangement exists). There are no treble damages under the Israeli law.

It is however important to note that according to well-established case law, the court will tend not to make an in-depth analysis on major competitive questions such as the market definition, in the context of preliminary remedies such as requests for temporary injunctions. Thus, in such cases it is likely that the full discussion regarding the competitive questions will be discussed only at the full trial.

For this reason, in cases in which the court has been presented with a clear-cut contractual question, it did not relate to the competitive claim, in the framework of preliminary or temporary remedies. For instance, in a case brought before the Supreme Court (the highest court in Israel), the court ruled in a preliminary hearing in favour of a party which claimed that the other party violated its exclusivity undertaking in the agreement, leaving the legality of such exclusivity vis-a-vis the Competition Law to be heard on the full trail.

Japan Small Flag Japan

Monetary damages for the amount of damage the aggrieved party actually suffered are available remedies under both Type A and Type B claims (for the method of calculating damages, see Question 17). It is also possible to demand an injunction (see Question 1).

The Netherlands Small Flag The Netherlands

In competition damages cases brought before the Dutch courts, the claimant is likely to claim damages (which do not have to be quantified from the outset) or declaratory relief in order to establish that e.g. the defendant is liable for damages, that an agreement is null and void owing to incompatibility with the competition rules or that the defendant has abused its dominant position. The claimant can also ask for a prohibition for certain (future) behaviour. Punitive damages are not available as they are considered contrary to the public order. The principle is that an injured party should not be overcompensated.

Available interim (provisional) relief includes injunctions for an advance payment of damages, seizure of assets and/or evidence and limited disclosure of documentary evidence.

A foundation or association representing more persons which have been harmed by the same or similar competition law breaches may request a preprocedural hearing prior to issuing a writ of summons (article 1018a DCCP). In order to request such a hearing the group represented by this foundation or association has to be of sufficient size. It is up the court’s discretion whether such request will be granted. Such a hearing can be used to explore a settlement or discuss the procedural order of the upcoming proceedings. A request for a preprocedural hearing by claimants in respect of the CRT cartel was dismissed in 2018 (Amsterdam District Court, ECLI:NL:RBAMS:2018:1682).

Philippines Small Flag Philippines

Aside from the private action for damages, pursuant to the Rules of Court,[4] a court hearing a civil action under Section 45 of the PCA may issue interim and final injunctive relief. For interim relief, the following essential requisites must be present:

(a) the right of the complainant is clear and unmistakable;

(b) the infringement of right sought to be protected is material and substantial; and

(c) there is an urgent and paramount necessity for the injunction to prevent serious damage.[5]

Pursuant to the Rules of Court, a court hearing a civil action under section 45 has the power to issue other interim relief such as (i) preliminary attachment and (ii) receivership, if warranted.[6]

In addition, claimants may seek administrative remedies under the PCA. These remedies may be availed of by filing an administrative complaint with the PCC.

Upon receipt of the complaint, the PCC, through its Enforcement Office, will conduct an investigation. During the investigation, the Enforcement Office may require the submission of testimony and documents through subpoenas. The PCC may also issue interim measures during the investigation to prevent the entity being investigated from performing certain acts that may have a material and adverse effect on consumers and competition.[7]

At the end of the investigation, the PCC may impose (a) administrative fines of up to Php 250 Million, depending on factors such as frequency of violation, relevant turnover and other aggravating or mitigating factors (e.g., voluntary desistance from the anti-competitive act); and (b) behavioral and structural remedies, such as an injunction ordering an entity to refrain from doing an act or continuing a particular course of action, disgorgement of excess profits or divestiture of shareholdings.

[4] - Rules of Court, Rule 58.
[5] - Pedro Lukang v. Pagbilao Development Corporation, G.R. No. 195374, 10 March 2014.
[6] - Rules of Court, Rules 57 and 59.
[7] - PCC Rules of Procedure, Rule XII, section 12.1.

Poland Small Flag Poland

The key remedy available to claimants in competition damages claims is a claim for payment of the compensation for damage (including actual loss and lost profits) incurred as a result of an infringement of the competition law together with applicable interests. Such claims for compensation could be pursued either as individual actions or a class action.

In addition, a remedy aiming at establishing a legal situation (i.e. sole declaring of a liability of the defendant for particular action or actions) is available in class actions. Unlike in case of individual claims aiming at establishing of a legal relationship, the claimant in a class action does not have to prove its legal interest in such declaration. In practice individual claims aiming at declaring of a liability of the defendant for a competition law infringement could possibly be dismissed due to a lack of legal interest, understood as having a possibility to pursue further-reaching claim, i.e. a claim for payment.

Also, motions for injunction (security of claim) are available to claimants in competition damage claims. The court may grant security prior to the initiation or in the course of proceedings. In order to obtain a security of damage claims, the claimant has to substantiate its claims and a legal interest in obtaining such security. Such a legal interest in having the security granted exists where the absence of security would prevent or significantly hinder the enforcement of a judgment in the case or would otherwise prevent or significantly hinder the achievement of the objective of the proceedings.

When granting a security before proceedings are initiated, the court would set a time limit of maximum 2 (two) weeks for statement of claim pleading to be filed. If the obligee does not pursue the claim within that limit or pursues a claim other than that which was secured, the security would be cancelled. Apart from that, in case the obligee fails to file the statement of claim within the prescribed time limit or if the action is dismissed the obligor may claim from the obligee redress of the damage caused by the enforcement of the security.

Portugal Small Flag Portugal

In private enforcement cases the typical final remedy is the liability claim for damages under Article 483 of the Portuguese Civil Code. To rule in favour of the claimant, the court must conclude (i) that a breach of competition law has occurred, (ii) that damages have been caused to the claimant, (iii) that there is a relevant fault of the defendant and (iv) that a "causal link" exists between the breach of competition law provisions and the occurrence of such damages.

This duty of demonstration may be eased if a previous condemnatory decision is issued by the Portuguese Competition Authority or by an appeal court that confirms in the context of that decision that competition law has been breached. Such ruling 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. The same does apply, although in more limited terms, in respect of decisions issued by foreign competition authorities or foreign courts.

Another relevant final remedy is the declaration of nullity of an agreement or specific clause or practice considered to be in breach of competition law, according to Article 289 of the Portuguese Civil Code, which has retroactive effects and, when granted, requires that the defendant returns all considerations provided under the agreement, clause or behaviour.

Argentina Small Flag Argentina

The claimant can seek a cease court order and it can also try to obtain other interim measures aiming to prevent the damages that the conduct may cause during the proceedings.

In order to request such interim measures, the party has to:

- Prove that there is a likelihood of success on the merit of the case (fumus bonis iuris).
- Prove that there is actual danger in waiting for the final resolution (periculum in mora).
- Provide security for the damages that the precautionary measure may cause.

Besides, Individuals who violate the provisions of the Competition Law may be obliged, at the request of the damaged party, to pay a civil fine to the damaged party (section 64, Competition Law). The fine's amount is determined by the judge having jurisdiction and is based on the seriousness of the event and other circumstances of the case, regardless of any other compensation that may apply.

Sweden Small Flag Sweden

The remedy that is available according to the Competition Damages Act is damages for actual loss and loss of income, including interest. Sweden does not recognise punitive damages.

In general, the losing party in a legal action also bears the legal costs. The winning party can thus recover all reasonable litigation costs from the losing party. The costs may also be apportioned between the parties depending on the degree of success of each party.

The ordinary rules on interim security measures apply.

Turkey Small Flag Turkey

The Competition Act provides that the difference between the price that the claimants were to pay if competition were not restricted and the price they paid due to the anti-competitive conduct can be requested as losses. Moreover, as per the Competition Act, competitors affected by the restriction of competition could request all the damages they incurred from the infringing undertaking(s). The Competition Act also introduces the rule of treble damages: the relevant court could decide for treble damages if the claimant requests and if damage results from an agreement or decision, or an act of gross negligence by the infringing undertakings. In this scenario, the court could determine a remedy for the compensation equal to three-fold the material damage incurred or the profits gained or likely to be gained by those who caused the damage.

Australia Small Flag Australia

The primary remedy for contravention of Part IV is recovery of the amount of any actual loss or damage caused by the contravention.

The court can also:

  • grant an injunction in such terms as it considers appropriate, where it is satisfied that a defendant has engaged in, or is proposing to engage in conduct in contravention of Part IV of the CCA (including being involved in the contravention, as further outlined below); and/or
  • make any order that it considers will compensate the claimant in whole or in part for loss or damage suffered or likely to be suffered, or which will prevent or reduce the loss or damage, caused by conduct of another person in contravention of Part IV of the CCA.

The court's power to grant an injunction is broad, and includes where a person has engaged or is proposing to engage in conduct that would constitute:

  • attempting to contravene such a provision;
  • aiding, abetting, procuring or inducing or attempting to induce a person to contravene such a provision;
  • being knowingly concerned in or party to a contravention of such a provision; or
  • conspiring with others to contravene such a provision.

Canada Small Flag Canada

Under section 36 of the Act, claimants can recover compensatory damages equal to the actual loss suffered, i.e., the “overcharge”, plus the costs of investigating the misconduct and bringing the proceeding. The overcharge is the extra amount claimants paid for the good, as compared to the price they would have paid in the absence of the anti-competitive conduct. The Act does not allow for recovery of punitive damages or treble damages.

Claimants typically bring equitable and common law claims often predicated upon breaches of the Act, as damages that can be recovered under the Act are limited. Such claims, such as common law conspiracy, unlawful interference with economic interests, unjust enrichment, or waiver of tort, can allow for aggravated and punitive damages, restitution, and disgorgement of profits.

There is debate as to whether the Act is a complete code for remedies available for a breach of the Act. The viability of equitable and common law claims for breaches of the Act has been resolved in plaintiffs’ favour in the civil law province of Quebec, and will be decided by the Supreme Court of Canada this year for common law provinces in the appeal of Godfrey v Sony Corporation, 2017 BCCA 302 (“Godfrey”).

Three class action certifications decided by the Supreme Court of Canada (Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57; Sun-Rype Products Ltd v Archer Daniels Midland Company, 2013 SCC 58; Infineon Technologies AG v Option Consommateurs, 2013 SCC 59) confirmed that indirect purchasers can bring class actions for damages based on violations of Canadian competition laws. Indirect purchaser actions are seen as furthering the goal of deterrence and are consistent with the principles of restitution, as indirect purchasers often bear the cost of antitrust violations, despite not having a contract or direct relationship with the alleged conspirators.

Italy Small Flag Italy

There are two main categories of available remedies:

  • award of damages; and
  • declaration of nullity of anticompetitive agreements.

Furthermore, interim measures are also available to immediately stop the anticompetitive conduct and in order to avoid irreparable damages or their worsening. In such case, the claimant shall prove that its claim is reasonable (fumus boni iuris) and that it will suffer further damages if the inhibitory is delayed (periculum in mora). It shall lastly be noted that if the infringer violates this interim measures, penalties can be applied by the court for every day of violation.

Romania Small Flag Romania

Anyone having suffered harm from an infringement of competition law may seek full reparation of the alleged prejudice.

By way of principle, such full reparation is meant to place the person who suffered the prejudice in the position in which that person would have been had the infringement of competition law not been committed. It shall therefore cover the right to compensation for actual loss and for loss of profit, plus the payment of interest. However, full compensation may not lead to over-compensation, whether by means of punitive, multiple damages or otherwise.

United Kingdom Small Flag United Kingdom

Claimants generally seek an award of damages. In addition, they can also seek an injunction (i.e. an order from the court mandating or prohibiting certain action by the defendant) and/or a declaration from the court as to the legal position.

Colombia Small Flag Colombia

a. Individual Actions: As compensation for the damage caused, the plaintiff might request:

i. The cessation of the conduct.

ii. The order for the defendant to refrain from perform the conduct again.

iii. The order for the defendant to undertake rectifying conducts on the market.

iv. The compensation of damages which will include predominantly the patrimonial without excluding the extra-patrimonial damages.

b. Collective Actions:

i. For popular actions, the claimant might request the judge to:

  1. provide an order to do something or refrain from doing something,
  2. pay a compensation of the damages caused; and/or
  3. provide an order to undertake any action needed to restore conditions to its prior state, before the breach of the collective right or interest.

ii. For class actions, the only remedy to be requested is the compensation of the damages (which might include patrimonial and extra patrimonial damages).

United States Small Flag United States

Section 4 of the Clayton Act makes treble damages available to all private plaintiffs except for foreign governments. 15 USC § 15 [1914]. Plaintiffs, including natural persons and businesses, may also sue for injunctive relief against a threatened loss caused by violation of the antitrust laws provided they can show “that the danger of irreparable loss or damage is immediate.” 15 USC §§ 25–26 [1914]. ¬

Updated: August 7, 2019