What types of conduct and causes of action can be relied upon as the basis of a competition damages claim?
Competition damages claims can be brought for violations of all types of anti-competitive behaviour, be it agreements restricting competition (on the basis of Article 101 TFEU or Article IV.1 of the Belgian Code of Economic Law (“CEL”)) or the abuse of a dominant position (Article 102 TFEU or Article IV.2 CEL). Per EU Regulation 1/2003, Articles 101 and 102 TFEU are directly applicable before the national courts, thus permitting victims to claim compensation for damage resulting from the infringement of EU competition rules before the national courts.
As of 1 June 2020, damages claims will also be available to companies whose economic dependency is abused by the company which they are dependent on, provided that competition on the Belgian market, or a substantial part thereof, is affected (on the basis of a new Article IV.2/1 in the Code of Economic Law).
Prior to the transposition of Directive 2014/104/EU by the Act of 6 June 2017, damages claims followed the general principles of civil liability law. As such, they had to be based on Articles 1382 of the Civil Code (for extra-contractual claims) or on Articles 1142 and 1184 of the Civil Code (for contractual claims). Under those articles, there was no presumption of damages for cartel infringements and only a limited possibility for forced production of individual documents.
The Act of 6 June 2017 has now altered this situation: while competition damages claims must still be based on the relevant articles of the Civil Code, some of the general rules applicable to those claims have now been supplemented in competition damages cases, for instance to create a presumption of damages in cartel infringements and a wider possibility for forced production of categories of documents. The substantive rules added by the Act of 6 June 2017 entered into force on 22 June 2017 and are applicable to acts carried out after this date. The new procedural rules, however, apply to any proceedings initiated after 26 December 2014.
Article 47 of the Brazilian Competition Law (Law No. 12,529, 2011 – “BCL”) establishes the right to file private civil actions against third parties to recover damages resulting from any conduct described under Article 36 as a violation to the economic order - which includes any conduct that has the object or is able to produce the following anticompetitive effects, even if such effects are not achieved: (i) to limit, hinder or restrain competition, (ii) to dominate a relevant market, (iii) to arbitrarily increase profits, or (iv) to abusively exercise a dominant position.
Moreover, the Brazilian Public Class Action Law (Law No. 7.347/1985 – “BPCAL”) establishes that the Public Prosecutor’s Office (State´s Attorney´s Office) and private entities focused on the protection of free competition may initiate class actions aiming at the redress of damages originated from illegalities.
The Anti-Monopoly Law of the People’s Republic of China (“PRC”) (“AML”) provides that an undertaking that engages in monopolistic conduct which causes loss to others shall bear civil liabilities.  The AML lists three types of monopolistic conduct: monopoly agreements, abuse of dominant market position, and concentration of undertakings that leads or may lead to anti-competitive effects. Theoretically speaking, each of the three monopolistic conducts can be relied upon as a cause of action. Practically speaking, however, concentration of undertakings that leads or may lead to anti-competitive effects may not be able to serve as the basis for a competition damages claim, which is supported by the fact that there have been no case on this ground in practice.
 - The AML also allows undertakings under investigation to bring an administrative action against the decision made by the AML enforcement agencies before the court. The competition administration action will not be discussed in this article.
A claimant (legal or physical person) can recover by way of a private civil action any loss or damage suffered as a direct result of a breach by an undertaking or associations of undertakings of Articles 3 and/or 6 of the Protection of Competition Law [13(I)/2008] (the “Competition Law”) and/or Articles 101 and 102 of the Treaty on the Functioning of European Union (hereinafter “TFEU”). This is provided by the national law establishing rules for actions for damages as a result of a breach of Cyprus protection of competition law and/or Articles 101 and 102 of the TFEU [Law 113(I)/2017] that has effectively transposed EU Directive 2014/104/EU.
The Egyptian Competition Law No. 3 of 2005 (“ECL”) tackles only criminal offenses, which are acts that aim to prevent, restrict, or harm the freedom of competition in Egypt and are exhaustively provided for in Articles 6, 7 and 8 of the ECL.
However, Anti-competitive practices such as hard-core cartels, abuse of dominant position and vertical restraints may be the basis of a competition damage claim. It is worth mentioning that the competition damages claims are not bound by specific provisions in Egyptian Law, therefore the general provisions for damage claims as provided for in the Egyptian Civil Code (“ECC”) shall apply thereon.
In addition, a contractual breach of a non-compete clause could be a cause of action that can be relied upon as the basis of a competition damages claim. In this case, the Court shall interpret the agreement between both parties and determine whether or not the Defendant, by breaching the agreement, has caused harm to the Claimant.
In all cases, the court shall establish the existence of a fault (i.e. an anti-competitive practice or a contractual breach), the existence of damage and the causal link between fault and damage.
In France, competition damages claims can be based on any violation of European and French competition law (article L. 481-1 FCC, introduced into French law as part of the implementation of the Damages Directive), covering:
- Anticompetitive agreements, including cartels and vertical agreements, based on article 101 of the Treaty on the Functioning of the European Union (TFUE) and/or article L. 420-1 FCC (which mirrors the provisions of article 101 TFEU);
- Abuses of a dominant position, based on article 102 TFUE and/or article L. 420-2 FCC (which mirrors the provisions of article 102 TFEU); and
- Specific infringements of French competition rules, including abuses of a state of economic dependence (article L. 420-2 FCC), abusively low prices (article L. 420-5 FCC), agreements in the French overseas territories granting exclusive import rights to a company or a group of companies (article L. 420-2-1 FCC), and specific agreements in the sector of individual public passenger transport services and occasional collective passenger transport services (article L. 420-2-2 FCC).
Victims of the above infringements can bring actions before the competent French courts, either on the basis of a prior decision of the French Competition Authority (FCA) or the European Commission (Commission) establishing the infringement (follow-on action), or absent any prior infringement decision from the FCA or the Commission (stand-alone action).
The types of conduct prohibited by sections 1 and 18 et seq of the German Act against Restraints of Competition (GWB) and Articles 101 and 102 Treaty on the Functioning of the European Union (TFEU, respectively Articles 81 and 82 Treaty Establishing the European Community (EC) prior to 2009) include:
- horizontal agreements, ie fixing of prices or terms and conditions, distribution of markets (either in territorial way or concerning customers or quotas),
- exchanging sensitive market data (in particular prices) or
- vertical agreements such as rescale price maintenance.
As the GWB has undergone major changes in the last fifteen years, the relevant provision for cartel damages claims depends on when the relevant infringement has taken place and the related claims have arisen:
- Prior to 1 January 1999: section 823 para 2 of the German Civil Code (BGB) in conjunction with sections 1 and 18 et seq GWB and Articles 81 and 82 EC;
- Between 1 January 1999 and 30 June 2005: section 33 sentence 1 GWB in the version of 26 August 1998 for infringements of sections 1 and 18 et seq GWB and section 823 para 2 BGB in conjunction with Articles 81 and 82 EC for breaches of EC competition law;
- Between 1 July 2005 and 26 December 2016: section 33 para 3 GWB in the version of 1 July 2005 is the relevant provision.
- Finally, cartel damage claims based on conduct after 26 December 2016 - ie following the implementation of the EU Damages Directive (Directive 2014/104/EU) - are now governed by section 33a GWB.
The Competition Ordinance (Cap.619) is the primary source of competition law in Hong Kong. The Competition Tribunal is a specialised court established by the Competition Ordinance to deal with legal proceedings concerning competition matters. Subsidiary legislation in the form of the Competition Tribunal Rules (CTR) provides further detail and the Competition Tribunal Practice Directions No.1 and No.2 govern the practice and procedure of the Competition Tribunal.
A private competition damages claim in Hong Kong can only be made by way of a follow-on action under the Competition Ordinance. The right to follow on is provided in section 110 of the Competition Ordinance in two circumstances:
- A competition authority in Hong Kong (i.e. the Competition Commission or the Communications Authority) must have previously established a contravention of a conduct rule in enforcement proceedings before the Competition Tribunal.
- A person has made an admission, in a commitment that has been accepted by the Competition Commission, that the person has contravened a conduct rule.
Persons who claim that they have suffered loss or damage as a result a contravention of a conduct rule have a right of action against (a) any person who has contravened or is contravening the rule; and (b) any person who is, or has been, involved in that contravention.
The basis of competition damages claim is set out in the Economic Competition Law, 5748-1988 (“The Law” or “Competition Law”). Article 50 of the Law stipulates that any act or omission committed in violation of the Law constitutes a tort under the Torts Ordinance [New Version], and therefore, any person harmed by the tortuous cause can claim damages. This means that any conduct which violates the Competition Law can be the basis for a competition damages claim. Such claims can be brought by competitors or by clients/suppliers.
Nevertheless, in order to be eligible for damages, the plaintiff must demonstrate some form of damage. For this reason, any violation of a technical provision of the Law, such as not filing merger notifications in cases that do not raise any competitive concerns, and would have been cleared were they filed, do not constitute a basis for a tort claim, since it did not cause any damage.
In principle, a party that has suffered damage due to a violation of the Act on Prohibition of Private Monopolization and Maintenance of Fair Trade (so called as the “Antimonopoly Act”) (“AMA”) may file a damages claim against the violating party based on either (1) Article 709 of the Civil Code (“Type A claims”) and/or (2) Article 25 of the AMA (“Type B claims”). Both types of claim are based on tort liability. The main differences lie in that Type B claims are so-called “follow-on” claims with strict liability (see Question 2) and how the statute of limitations is calculated (see Question 5).
In addition, an aggrieved party may file a claim of unjust enrichment (Articles 703 and 704 of the Civil Code), which performs a function similar to that of a competition damages claim, when a contract has been concluded based on bid-rigging, abuse of superior bargaining position, etc. and therefore was held to be void due to public policy. An unjust enrichment claim is advantageous because (i) the limitation period is a period of 10 years (Article 167 of the Civil Code) and (ii) the burden of proof of damage can be shifted to the defendant. For Type A and B claims, the limitation periods are shorter (see Question 5) and the aggrieved party assumes the burden of proving damage.
At the same time, in relation to violations or potential violations of Article 8(v) or Article 19 of AMA (unfair trade practices), an aggrieved party who is suffering or likely to suffer extreme damage is entitled to seek an injunction to suspend or prevent the infringements (Article 24 of the AMA).
A person or legal entity may bring claims for compensation for loss caused to it by a breach of national or EU competition laws such as participation in a cartel, agreements to fix prices, limit or control production or markets and abusing a dominant position.
Competition damages claims are generally tortious liability claims, article 6:162 Dutch Civil Code (DCC). In theory, an injured party could also base a claim on e.g. undue payment (article 6:203 DCC), unjust enrichment (article 6:212 DCC) or breach of contractual obligations (article 6:74 DCC).
Since the implementation of the Directive on Antitrust Damages Actions, the DCC contains special provisions for antitrust damages actions. Amongst others, on the basis of article 6:193l DCC, a cartel infringing competition laws is assumed to cause damage. On the basis of article 6:193m DCC undertakings which have infringed competition laws through joint behaviour are jointly and severally liable for the harm caused by that infringement.
In the Philippines, a private claim for damages is available under section 45 of the Philippine Competition Act (PCA).
Section 45 provides that any person, who suffers direct injury by reason of any violation of the PCA, may file a separate and independent civil action for damages. Under Philippine law and procedure, a civil action for damages is the primary remedy by an aggrieved party to obtain compensation for loss or injury arising from a violation of the PCA.
Under the Act of 21 April 2017 on claims for compensation for damage caused by violation of competition law (Polish Private Enforcement Act, Act), the claimant may seek damages for defendant’s behaviour that constituted an infringement of competition law understood as a violation of Article 101 or 102 of the Treaty on the Functioning of the European Union (TFEU), or their Polish equivalents - respectively - Articles 6 and 9 of the Act of 16 February 2007 on Competition and Consumer Protection (Polish Competition Act). This means that the Polish Private Enforcement Act permits to seek compensation not only for damage incurred as a result of cartels, but also vertical restraints and instances of an abuse of dominance.
Most of the claims brought before the Portuguese courts on the grounds of breach of competition law seek compensation for damages under national and European law for infringements of competition law provisions. However, it should be noted that it is also possible to file a claim for the nullity of agreements or of specific clauses that breach national or European competition law, as well as requests for interim measures related to conducts which breach both legal frameworks.
In more detail, the legal grounds for bringing an action for breach of competition law are Articles 9, 11, 12 and 36 to 59 of the Portuguese Competition Law, approved by Law no. 19/2012, of 8 May (“Portuguese Competition Law”), Articles 101, 102 and 107 to 109 of the Treaty on the Functioning of the European Union (“TFEU”) and the Council Regulation 139/2004 of 20 January 2004 on the control of concentrations between undertakings (“Regulation 139/2004”).
The prohibited competitive practices are basically the following three and are foreseen in Articles 9, 11, 12 of the Portuguese Competition Law and 101 and 102 of the TFEU: (i) collusive practices, including cartels and vertical agreements, such as agreements between undertakings, concerted practices or decisions by associations of undertakings; (ii) abuse of dominant position; and (iii) abuse of economic dependence.
The other legal grounds for bringing actions for breach of competition law are Treaty provisions on state aid, pursuant to Articles 107 and 109 of the TFEU, and potentially the breach of merger control provisions, pursuant to Articles 36 to 59 of the Portuguese Competition Law and Regulation 139/2004.
As most of the claims related with the breach of competition law seek compensation for damages caused by anti-competitive practices, we will focus our analysis on those claims, except when otherwise specified.
Law no. 23/2018, of 5 June (“Law 23/2018”), which transposes into the Portuguese legal framework the EU Directive 2014/104, of 26 November, sets out a new liability regime for damages due to infringements of competition law. The legal regime set out in Law 23/2018 is only applicable to claims for damages under national law brought as a consequence of infringements of competition law provisions related with the anti-competitive practices foreseen in Articles 9, 11 and 12 of the Portuguese Competition Law and Articles 101 and 102 of the TFEU mentioned above, i.e.(i) collusive practices, including cartels and vertical agreements, such as agreements between undertakings, concerted practices or decisions by associations of undertakings; (ii) abuse of dominant position; and (iii) abuse of economic dependence.
Competition damages claim is regulated under Chapter IX of the Argentine Competition Law N° 27,442 (the Competition Law). The Competition Law does not distinguish between bilateral and multilateral antitrust infringements (for example, a cartel), and unilateral antitrust infringements (for example, behavioural infringements, monopolisation, or abuse of dominant position). Therefore, competition damages claim is available for bilateral, multilateral and unilateral infringements.
The Competition Damages Act (2016:964) (the "Competition Damages Act") governs actions for damages for infringements of competition law provisions. Chapter 3, Section 25 of the Competition Act provides a right to damages for parties injured because of infringements of Chapter 2, Sections 1 or 7 of the Competition Act or Articles 101 or 102 TFEU. The basic antitrust prohibitions in Swedish competition law mirror the prohibitions in Articles 101 and 102 of the Treaty of the Functioning of the European Union (TFEU), and include prohibitions against agreements between undertakings that restrict competition (Chapter 2, Section 1 of the Competition Act); and abuse of a dominant position (Chapter 2, Section 7 of the Competition Act).
Turkish competition law mainly prohibits (i) anti-competitive agreements, (ii) abuse of dominance, and (iii) mergers and acquisitions which lead to a dominant position and restrict competition. Since mergers are subject to an ex ante authorization regime in Turkey, as a practical matter, they are unlikely to be a cause of action in a competition damages claim.
As per Article 4 of The Act on the Protection of Competition No. 4054 (“Competition Act”), agreements and concerted practices between undertakings, and the decisions and practices of trade associations that have as their object, effect or likely effect the distortion, restriction or elimination of competition directly or indirectly in a particular market for goods or services, are illegal and prohibited. Both horizontal agreements between competitors (such as directly or indirectly fixing purchase or sales prices or any other trading conditions, region/customer allocation, control of supply, exchange of strategic information, bid-rigging or collective boycotts) and vertical agreements between a supplier and its customers (such as resale price maintenance, region and customer restrictions and unreasonable non-compete clauses) fall within the scope of Article 4.
As per Article 6 of Competition Act, any abuse by one or more undertakings of a dominant position within Turkey or in a substantial part of Turkey is prohibited.
Article 2 of the Competition Act provides that the scope of the Competition Act is limited to the borders of the Republic of Turkey. With that said, all infringements directly affecting the Turkish market are subject to Turkish law; even if infringements originate in a third country, claims can be brought against undertakings from other jurisdictions under Turkish law and in Turkish courts, provided the infringement directly affects Turkey.
Australia's key competition law provisions are set out in Part IV of the Competition and Consumer Act 2010 (Cth) (CCA) which deals with restrictive trade practices.
Part IV of the CCA prohibits:
- cartel conduct, including price fixing, restricting outputs, allocating customers, suppliers or territories (market sharing), or bid-rigging (division 1);
- anti-competitive contracts, arrangements, understandings and 'concerted' practices that have the purpose, effect or likely effect of substantially lessening competition (section 45);
- certain boycotts (sections 45D-45E);
- misuse of market power (sections 46-46B);
- exclusive dealing, which covers certain types of restrictions on supplied or acquirer of goods and services and is only prohibited if it has the purpose, effect or likely effect of substantially lessening competition (section 47);
- resale price maintenance, which covers a supplier attempting to prohibit or induce an acquirer not to re-supply the supplier's goods or services for less than a specified price (section 48); and
- mergers and acquisitions which have the effect or likely effect of substantially lessening competition (section 50).
A competition damages claim can be brought under section 82 of the CCA by a person who suffers loss or damage by conduct of another person that was done in contravention of Part IV of the CCA. In practice, claims are usually brought after determination of proceedings brought by the competition regulator, the Australian Competition and Consumer Commission (ACCC).
Section 36 of the Competition Act (“Act”) provides that any person who has suffered loss or damage as a result of violations of the criminal provisions of the Act, which cover price fixing, bid rigging, and intentionally misleading representations associated with the sale of goods or services, or as a result of a failure to comply with an order of the Competition Tribunal (“Tribunal”) has a right to commence a private right of action to recover damages equal to actual loss suffered, plus legal costs.
While private applications before the Tribunal are available with leave for certain reviewable anti-competitive practices, namely, exclusive dealing, price maintenance, and refusal to deal, damages are not available from the Tribunal and such applications are rare. Accordingly, for the most part, the balance of this chapter addresses damages claims before the courts, not cases before the Tribunal.
All infringements of Italian or EU competition law can be relied upon as the basis of a competition damages claim. In this respect, the following are the main relevant provisions on this subject-matter:
- Articles 2595 - 2601 of the Italian Civil Code (ICC) concerning unfair competition acts;
- Law 10 October 1990, No. 287 which constitutes the Competition and Fair Trading Act (Law 287/90);
- Articles 101 - 102 of the Treaty on the Functioning of the European Union (TFEU).
In a nutshell, the above provisions punish whoever uses means which do not comply with the principles of professional correctness and which may damage the business of others and whoever through the abuse of dominance or through concerted practices and agreements with other undertakings affect the fair trade.
Here are some examples of anticompetitive or unfair competition conducts provided by Italian law:
- direct or indirect fixing or imposition of purchase or selling prices or of any other trading conditions;
- application of dissimilar conditions to equivalent transactions with other trading parties;
- make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which have no connection with the subject of such contracts;
- use of names or of distinguishing marks likely to cause confusion among the clients;
- spread information and appreciations on the products and activities of a competitor likely to cause discredit;
- misleading and unlawful advertisement.
Furthermore, Legislative Decree No. 3/2017 (L.D. 3/2017) - which implemented EU Directive 2014/104 and which concerns in particulars violations of Law 287/90 and of Articles 101 - 102 of the TFEU - sets forth that conducts in breach of the provisions of another EU Member State which pursue principally the same objective as Articles 101 and 102 of the TFEU are also punishable in Italy.
Broadly, according to Romanian law, in particular Emergency Government Ordinance no. 39/2017 regulating damages claims in case of competition law infringements (EGO 39), any person having incurred a damage from an infringement of competition law by an undertaking or by an association of undertakings can exercise the right to claim full compensation for that harm from that undertaking or association. Thus, the competition damages claim is a remedy destined to cover a wide array of conducts.
An “infringement of competition law” means an infringement of Article 101 (i.e., agreements between undertakings, decisions by associations of undertakings or concerted practices which may affect trade between the member states of the European Union and which have as their object or effect the prevention, restriction or distortion of competition within the internal market) or Article 102 (i.e., abuse by one or more undertakings holding a dominant position within the internal market or in a substantial part of it in so far as it may affect the trade between the member states of the European Union) of the Treaty on the Functioning of the European Union (TFEU) or of the national competition law equivalent provisions (i.e., the provisions of the Competition Law No. 21/1996 having similar objectives to those of articles 101 and 102 of TFEU).
Therefore, damages claims can be brought in relation to anticompetitive agreements/concerted practices of: (i) directly or indirectly fixing the purchase or selling price or any other trading conditions; (ii) limiting or controlling production, markets, technical development or investment; (iii) sharing markets or sources of supply; (iv) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (v) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
As regards dominance abuse, the conduct may refer to: (i) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (ii) limiting production, markets or technical development to the prejudice of consumers; (iii) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (iv) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
The form of liability is tort, which under general Romanian Civil code rules requires proof by the claimant of (i) an unlawful act, (ii) the existence and quantum of a damage (iii) a link between the unlawful act and the damage and (iv) fault.
Claims are usually framed as actions for breach of statutory duty in respect of (i) Articles 101 or 102 of the Treaty on the Functioning of the European Union (“TFEU”), and/or (ii) the equivalent UK domestic provisions, sections 2 and 18 of the Competition Act 1998 (“CA98”) (known as the “Chapter I” and “Chapter II” prohibitions).
Article 101 TFEU prohibits agreements or decisions by associations of undertakings and concerted practices which may affect trade between EU member states and which have as their object or effect the prevention, restriction or distortion of competition. The Chapter I provisions prohibit similar agreements affecting trade within the UK. Article 102 TFEU prohibits the abuse of a dominant position within the EU which may affect trade between EU member states. The Chapter II provisions prohibit similar conduct affecting trade within the UK.
Claims can be brought on either a follow-on or stand-alone basis. Follow-on claims rely on a prior infringement finding (e.g. a decision by the European Commission (the “Commission”) or the UK Competition and Markets Authority (“CMA”)) to establish liability, whereas in a stand-alone claim, liability must be proved by the claimant. In practice, claims may be a hybrid of the two.
In Air Canada & Ors v Emerald Supplies Limited & Ors  EWCA Civ 1024, the Court of Appeal struck out an attempt to base claims on the economic tort of unlawful means conspiracy on the basis that the requisite intention to injure the claimants (who were indirect purchasers of the allegedly cartelised services) could not be established.
Colombian law does not have a specific regulation applicable to competition damages claims. Therefore, the damages that arise from breaches to the competition regime shall be indemnified as any damage caused to any person or group under civil law. For this purpose, there are two types of actions:
a. Individual actions: Under Colombian law, any person that suffers a damage has one of two civil liability actions depending on the source of the damage:
i. Contractual liability: These actions can be undertaken by any part of a prior legal bond (mainly contracts), as a consequence of a breach of any duty derived from such bond, meaning a contractual breach.
ii. Non-contractual liability or tort: In this case, the parties do not have a prior legal bond before the damage is caused.
Notwithstanding the aforementioned, a Competition damages claim normally undertakes the procedure of a tort considering that it is supported on a generic duty that is the protection and maintenance of the Competition in the markets, and this generic duty does not commonly arise from a prior legal bond but from the Colombian constitution and law.
b. Collective actions: Law 472 of 1998 regulates two specific actions that can be undertaken in order to protect a collective interest or the interests of a specific group:
i. Popular Action (“Acción Propular”): This action is designed to protect collective rights and interests. Competition is recognized as a collective right and interest on article 4 of Law 472.
This action has per purpose to prevent a contingent damage, eliminate a danger, hazard, violation or grievance to collective right and interests, or restore conditions to its prior state, if possible. It can be promoted by an individual or a group of persons. Considering that it protects a collective interest, the claim filled by a single individual will, in any case, benefit all the beneficiaries of such interest.
ii. Class Action (“Acción de Grupo”): This action shall be promoted by a group or an individual in representation of a group of people that have uniform conditions regarding a same cause from which several individual damages arise. This action has as exclusive purpose the recognition and payment of a compensation for the damages caused.
Considering the compensatory nature of the class action, it is the action more used to submit a competition damages claim. Also, collective actions are preferred against individual actions considering they have a preferential procedure and are decided in a shorter term.
The Colombian precedent on competition damages claims has arisen from a few class actions promoted by consumers or consumer’s leagues (or different organizations representing consumers and/or consumers’ interests) as a consequence of a decision issued by the Superintendence of Industry and Commerce, as competition authority in Colombia,
Please consider that for all the purposes of this questionnaire, we will differentiate between individual actions (considering mainly a tort action) and collective actions (considering mainly a class action).
A number of federal statutes prohibit anti-competitive conduct and are relied upon as the basis of competition damages claims. While the federal regulatory regime sets the floor for US antitrust law, individual states may enact more restrictive antitrust laws.
Key federal statutes regulating competition and providing for a private right of action include:
- Section 1 of the Sherman Act of 1890, which prohibits all agreements, contracts, and conspiracies that unreasonably restrain trade and impact interstate commerce. 15 USC § 1 . Violations of Section 1 are the most common basis for private competition claims in the United States.
- Section 2 of the Sherman Act, which creates a private right of action for creating or attempting to create a monopoly through anticompetitive acts. 15 USC § 2 . Such claims require a court to determine whether the defendant does in fact have monopoly power and if it has acted wilfully to acquire or maintain that power through conduct such as unjustified refusals to deal, predatory pricing, or filing baseless lawsuits against competitors.
- Section 3 of the Clayton Act of 1914, which prohibits tying arrangements, where multiple products or services are inseparably bundled and must be purchased together, and anticompetitive exclusive dealing, where a distributor agrees with a supplier not to sell the products of other suppliers. 15 USC § 14 .
- Section 8 of the Clayton Act, which prohibits competing corporations from having “interlocking directorates,” where directors overlap on two or more competing corporations. 15 USC § 19 .
- The Robinson-Patman Act of 1936, which prohibits price discrimination in the sale of goods to equally-situated distributors. 15 USC § 13 .
The Federal Trade Commission [FTC] Act of 1914 gives the FTC the ability to prohibit acts that would violate the Sherman Act before they have occurred, including invitations to collude which would constitute agreements violating Section 1 of the Sherman Act if accepted, and practices allowing competing companies to coordinate prices without explicit agreements. 15 USC §§ 41 – 58.
Section 1 of the Sherman Act has been interpreted broadly, and thus an “agreement” need not be explicit. American Tobacco Co v United States, 328 US 781, 810 . Rather, an agreement may be determined to exist if the accused engaged in parallel business conduct and other “plus factors” (eg a motive to conspire and actions against its self-interest, if the defendant had acted alone) are present. Bell Atlantic Corp v Twombly, 550 US 544 .
Courts examining claims brought under Section 1 of the Sherman Act must also determine if the alleged conduct “unreasonably” restrained trade. Analysis of this element is divided into two subcategories: (i) per se illegal restraints on trade, and (ii) restraints on trade that must be further analysed under the “rule of reason” test. State Oil Co v Khan, 522 US 3, 10 . Activities deemed per se illegal do not require further analysis into the reasonableness of the restraint on trade and are considered to be violations of the Sherman Act. See generally NYNEX Corp v Discon, Inc, 525 US 128, 133 . Such activities include price fixing, rigging bids, and allocation of markets or customers.
Under the “rule of reason” test, courts analyze “specific information about the relevant businesses, its condition before and after the restraint was imposed, and the restraint’s history, nature and effect.” State Oil, 522 US at 10. If a defendant can show that the alleged anticompetitive activity served a legitimate business purpose or was motivated by a legitimate business aim, it can defeat claims of agreements that unreasonably restrain trade under Section 1 and attempts to monopolise in restraint of trade under Section 2 of the Sherman Act. See, eg, Times-Picayune Pub Co v United States, 345 US 594, 627 .
A plaintiff initiating an action under Section 2 of the Sherman Act must show that the defendant possessed “monopoly power in the relevant market” and acquired or maintained that power through means beyond having “a superior product, business acumen, or historic accident.” United States v Grinnell Corp, 384 US 563, 570–71 . Alternatively, a plaintiff can allege that a defendant attempted to monopolise if the plaintiff can show that the defendant engaged in certain anticompetitive acts intended to create a monopoly, had the specific intent to monopolise, and had a dangerous probability of success. Spectrum Sports, Inc v McQuillan, 506 US 447, 459 .
Claims of price discrimination under the Robinson-Patman Act must include allegations of two or more completed sales by the same seller to two or more buyers of products that are of similar quality at differing prices within a reasonably small window of time which may harm competition in interstate commerce. See Volvo Trucks North America, Inc v Reeder-Simco GMC, Inc, 546 US 164 .