Transcript www.internationalcompetitionnetwork.org

BUNDESWETTBEWERBSBEHÖRDE
12th December 2012
Natalie Harsdorf
Cartels & International
BUNDESWETTBEWERBSBEHÖRDE
CONTENT OF THE SPEECH
CONTENT:
I.
Collective Actions in Austria
II.
Amendement of the Austrian Cartel Act
III.
Print-chemicals Cartel in Austria: Access to file
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BUNDESWETTBEWERBSBEHÖRDE
I. Collective Actions in Austria
 No class actions in Austria
 But: “Zivilverfahrens-Novelle 2007“ intended to
introduce master lawsuit (Musterklage) and
collective actions (Gruppenklagen); from 50 claims
on
 This amendment was stopped in 2008
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BUNDESWETTBEWERBSBEHÖRDE
I. Collective Actions in Austria
AUSTRIAN SOLUTION:
 = collective actions sui generis:
 Developed inter alia by a consumer organisation
 Main instrument: Cession
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BUNDESWETTBEWERBSBEHÖRDE
I. Collective Actions in Austria
 How it works:
 Victims cede their charges to a consumer organisation to claim
for them; § 502 Abs 5 Z 3 ZPO
 The consumer organisation files a suit in form of a Joinder of
causes of actions (objektive Klagshäufung); § 227 ZPO
 Litigation funding by private third parties (e.g. companies
specialising in financing litigation)
 No contingency fee (Erfolgshonorar) for the lawyer
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BUNDESWETTBEWERBSBEHÖRDE
I. Collective Actions in Austria
 Thus: No class action




One claimant
But different separate claims
Individual decision for each claim
Names of victims are well known in advance
(no unknown group)
 Austrian Supreme Court accepts this form of claim sui generis;
 Requirements: same issue of fact and same issue of law
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BUNDESWETTBEWERBSBEHÖRDE
II. Amendement of the Austrian Cartel Act
 An Amendement of the Austrian Cartel Act is under review of the
Austrian Parliament at the moment
 It foresees inter alia:
 an separate clause for damages and
 a clarification regarding a motion for a declaratory judgement
(Feststellungsantrag) in case of actions for damages
 New § 37 Cartel Act: Decisions of the Cartel Court first
instance will be published
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BUNDESWETTBEWERBSBEHÖRDE
II. Amendement of the Austrian Cartel Act
A) Motion for a declaratory judgement: (Feststellungsantrag)
 The Austrian Cartel Act requires inter alia an entitled interest (not
a legitimate interest) of the movant; otherwise no declaratory
judgement will be made; § 28 KartG
 To the present day the Jurisdiction of the Austrian Supreme
Cartel Court says an action for damages in case of the breach of
antitrust law is NO entiteld interest within the meaning of § 28
KartG.
 Thus, such motions are not allowed and therefore stand alone
actions are rather difficulty to bring.
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BUNDESWETTBEWERBSBEHÖRDE
II. Amendement of the Austrian Cartel Act
The Amendment foresees :
 Such cases fulfill the requirements of an entitled interest,
 except the Court has already made a decision in this case or this
case is actually pending.
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BUNDESWETTBEWERBSBEHÖRDE
II. Amendement of the Austrian Cartel Act
B) Separate clause for damages containing inter alia (§ 37 a
Cartel Act new):
 A Cause of Action (Anspruchsgrundlage)
 Interest (Zinsen) starting with the occurence of damage
 No passing on defense (Kein Einwand der Schadensabwälzung)
 Binding effect of a valid decision (restricted to the infringement
and the fault) made by Cartel Court, European Commission or
NCA for the Civil Courts
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BUNDESWETTBEWERBSBEHÖRDE
II. Amendement of the Austrian Cartel Act
B) Separate clause for damages containing inter alia:
 Abate the tort litigation (Unterbrechung SchaE-Verf) until the
decision of the Austrian Cartel Court, European Commission or
NCA about the infringement
 Limitation period (Verjährung) is supended until 6 month after a
valid cartel decision
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BUNDESWETTBEWERBSBEHÖRDE
III. Print-chemicals Cartel in Austria
 BWB investigated cartel concerning printing chemicals and brought to the Cartel
Court
 Fine of 1,5 Mio € was confirmed by the High Cartel Court in October 2010
 Private association representing several companies allegedly harmed by the
cartel asked to get access to the entire case file of the cartel Court
 At issue is the national legislation whereby, in Court proceedings relating to
competition, access to the file by third parties is subject to the consent of all
parties to the proceedings.
 Austrian Cartel Court made a preliminary reference to the ECJ – C-536/11 Donau
Chemie ea – asking in essence whether the Austrian legislation conflicts with
principles of effectiveness and equivalence
 Oral hearing in front of the ECJ took place on the 4th October 2012
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The issues in the Donau Chemie case
 Austrian §39(2) Cartel Act precludes access to file by third parties
unless all parties to the main proceeding consent to give access;
also only the decisions of the High Cartel Court are open to public.
But the BWB informs on decisions of the Cartel Court in the first
instance on its website (§10b Competition Act).
 In the context of competition law proceedings, the Austrian Cartel
Court is deprived of any weighing of competing interests, whereas
such weighing does take place in respect of access to the file in
comparable civil and criminal proceedings.
 As a result, if only a single party to the cartel proceedings objects,
third parties are deprived of access to file not only concerning
leniency related information but to the case file at large.
BWB – BUNDESWETTBEWERBSBEHÖRDE
The issues in the Donau Chemie case (cont‘d)
 The questions referred to the ECJ were whether
 this national legislation deprives the Cartel Court of an ad hoc
balancing of the public interest in an effect application of Art 101
TFEU and the private interest of persons seeking private
damages as foreseen in Pfleiderer (Pfleiderer , ¶ 31)
and whether
 the fact that Austrian legislator foresees the weighing of interests
in respect of access to the file in comparable civil and criminal
proceedings violates the principle of equivalence (Pfleiderer ,¶
30).
BWB – BUNDESWETTBEWERBSBEHÖRDE
Is it only for the courts to determine the conditions under which
access to file is granted or refused by weighing the respective
interests protected under EU law?
 In our view it was not the ECJ’s intention that the weighing exercise can
only be conducted by the national courts:
 The ECJ’s decision is rather premised on the fact that the German legislation
foresees a balancing conducted by the courts (§ 406s StPO).
 “[…] it is, in the absence of binding regulation under European Union law on the
subject, for Member States to establish and apply national rules on the right of
access, by persons adversely affected by a cartel, to documents relating to
leniency procedures.” (Pfleiderer , ¶ 23).
 Pfleiderer does therefore not necessarily foresee a distribution of competences
between the national courts and the national legislator.
 Thus, it is also the national legislator who can balance the respective
interests subject to the principle of effectiveness:
 According to the explanatory remarks pertaining to the national legislation at
issue the legislator conducted that weighing exercise according to which the
public interest in prosecuting competition law infringements outweighs the
private interest in seeking damages.
BWB – BUNDESWETTBEWERBSBEHÖRDE
Is it only for the courts to determine the conditions under which
access to file is granted or refused by weighing the respective
interests protected under EU law? (cont‘d)
 The national legislator’s balancing exercise, though, is subject
to the principle of effectiveness:
 “[…] it is necessary to ensure that the applicable national rules […]
do not operate in such a way as to make it practically impossible or
excessively difficult to obtain such compensation.” (Pfleiderer, ¶
30).
 In our view the relevant benchmark is not whether access to file is
practically impossible or excessively difficult but whether
obtaining damages and, thus, the effective implementation of
the EU competition rules overall is still effectively possible.
BWB – BUNDESWETTBEWERBSBEHÖRDE
Is it only for the courts to determine the conditions under which
access to file is granted or refused by weighing the respective
interests protected under EU law? (cont‘d)
 Notwithstanding the total exclusion from access to the Cartel Court’s file,
the right of persons harmed by infringements to seek damages is, in our
view, still effectively possible (there has been already one successful case):
 Decisions taken by the Cartel Court have a binding effect on the civil courts in
follow on damage claims.
 Several provisions in the Code of Civil Procedure facilitate follow on actions:
 When compensation is claimed in tort actions the burden of proof with regard to fault is
reversed.
 Moreover, the judge may estimate the amount of damages if it is impossible or
disproportionate to demonstrate the precise amount of loss
 If the defendant possesses documents which the plaintiff considers as relevant
evidence to support her claim, the judge may order the production of the evidence.
 As a result, given the overall legal situation of the persons harmed by
infringements, the national legislation in respect of access to file goes, in
our view, not against the principle of effectiveness.
BWB – BUNDESWETTBEWERBSBEHÖRDE
Does the fact that the Austrian legislator foresees the weighing of
interests in respect of access to file in comparable civil and criminal
proceedings go against the principle of equivalence?
 “ […] it is necessary to ensure that the applicable national rules are
not less favourable than those governing similar domestic claims.”
(Pfleiderer, ¶ 30)
 The principle of equivalence implies only that the procedural rule
applies without distinction to actions alleging infringements of
Community law and to those alleging infringements of national law.
(Levez v Jennings, ¶ 41)
 Moreover, the principle is not to be interpreted as requiring MS to
extend their most favourable procedural rules to all proceedings in
which EU law is applied. (Edis, ¶ 36).
BWB – BUNDESWETTBEWERBSBEHÖRDE
Does the fact that the Austrian legislator foresees the weighing of
interests in respect of access to file in comparable civil and criminal
proceedings go against the principle of equivalence? (cont’d)
 As a result, the fact that there are other more favorable rules
governing access to file in comparable civil and criminal
proceedings does not necessarily mean that the principle of
equivalence is offended.
 In our view, it was not the ECJ’s intention in Pfleiderer to rule on the
relationship between access to file in proceedings related to
competition and in comparable civil and criminal proceedings.
BWB – BUNDESWETTBEWERBSBEHÖRDE
BUNDESWETTBEWERBSBEHÖRDE
Thank you for your attention!
[email protected]
www.bwb.gv.at
Twitter: BWB_WETTBEWERB
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