Passing-on of Overcharges and the Implementation of the Damages Directive in CEE Countries

Author(s): Raimundas Moisejevas / Language(s): English Issue: 15/2017

The article focuses on the concept of passing-on of overcharges and the peculiarities of its regulation by the Damages Directive. The Damages Directive obliges Member States to ensure that the defendant in an action for damages may invoke the passing-on defence. Moreover, the Directive establishes the new framework and the main principles that govern the application of the passing-on defence. The national case law on passing-on is very insignificant in Central and Eastern European countries and many questions are expected to be raised in the courts of the CEE Member States. While discussing the concept of passing-on in the Damages Directive, a lot of emphasis should be paid to the issue of causation. Causation will definitely be the subject of most of the questions in cases when an indirect purchaser will bring a claim for damages. Causation may be tricky when an indirect purchaser claims it suffered an ‘overcharge harm’ because of passing-on. In most cases, the issue of causation will be decided mainly by national courts based on national procedural rules. Depending on the situation, passing-on may be used as a basis for the claim (as a ‘sword’) or as a defence (as a ‘shield’). It could be used as a basis for the claim by an indirect purchaser, in case s/he has suffered any harm because of the illegal actions of a cartelist or a dominant company. At the same time, it could be used as a defence by the infringer against a claim for damages. The article also analyses the specifics of the implementation of the Directive into the national laws of CEE Member States

Provisions of the Damages Directive on Limitation Periods and their Implementation in CEE Countries

Author(s): Klemen Podobnik,Ana Vlahek / Language(s): English Issue: 15/2017

The article analyses the provisions on limitation of antitrust damages actions set out in Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. It presents (draft) implementing legislation of CEE countries from the perspective of their general rules on limitation, and the problems the Member States have faced in the process of transposing the Directive into their national legal systems. Within that, focus is placed upon the analysis of the types of limitation periods, their length and their suspension or interruption. In addition, the authors present the effects of the new limitation regime on the balance between the interests of the claimants and of the defendants, as well as on the relation between public and private antitrust enforcement.

Effect of National Decisions on Actions for Competition Damages in the CEE Countries

Author(s): Evelin Pärn-Lee / Language(s): English Issue: 15/2017

One of the main objectives of the so-called Damages Directive (2014/104/EU) was to make antitrust enforcement more effective. Although in most EU countries private antitrust enforcement has been possible subject to general rules of civil law; the number of private antitrust litigations has remained relatively low. It is presumed that the complementary roles of public and private enforcement, as well as the synergy between them, will take effect if formal decisions taken during public enforcement will have binding effect with regard to follow-on private litigations. According to the Damages Directive, final national decisions on competition infringements shall have binding effect in follow-on litigations. What is to be understood under ‘binding effect’, and the potential effects thereof, has been subject to a lively debate among academics and practitioners. It has been questioned if decisions of an executive body can bind the judiciary, and if so, to what extent. What is the evidentiary value of a formal decision of a NCA regarding national courts, but also on the court of another Member State. The article deals with the main issues and arguments presented in the general debate on the binding effect of national competition law decisions, and provides a closer look on this topic with regard to specific CEE countries

Disclosure of Evidence in Central and Eastern European Countries in Light of the Implementation of the Damages Directive

Author(s): Inese Druviete,Jūlija Jerņeva,Aravamudhan Ulaganathan Ravindran / Language(s): English Issue: 15/2017

The article looks primarily at the material comprised in the volume edited by A.Piszcz, Implementation of the EU Damages Directive in Central and Eastern European Countries published in 2017 and based on that compares aspects of the disclosure of evidence issue in Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia.The purpose of this article is to look into how the process for the disclosure of evidence has evolved in eleven countries of the European Union in light of Directive 2014/104/EU. The article looks at six key issues with regard to disclosure of evidence in light of Directive 2014/104/EU: general procedural issues; procedure for the submission of evidence; criteria for the disclosure of evidence; restrictions on the disclosure of evidence; disclosure of evidence by parties other than the defendant; and consequences of the failure to comply with a request to submit evidence. The article relies on primary data from eleven EU countries from Central and Eastern Europe.

Compensatory Collective Redress: Will It Be Part of Private Enforcement of Competition Law in CEE Countries?

Author(s): Anna Piszcz / Language(s): English Issue: 15/2017

The article aims to compare and evaluate solutions with regard to compensatory collective redress existing in CEE countries. The author will attempt to illuminate obstacles and challenges to using collective redress as an avenue for antitrust enforcement in CEE countries, as well as possible advantages of the scrutinised legal frameworks. Besides focusing on national provisions, the article will draw on provisions of the Damages Directive and the Commission’s Recommendation on collective redress mechanisms. It will open up the field for de lege ferenda proposals also.

Proving the Grounds for Compensation – Reflections on Private Enforcement in the Polish Cement Cartel Case.

Author(s): Magdalena Knapp,Paulina Korycińska-Rządca / Language(s): English Issue: 15/2017

Compensation of Damages in Standalone Cases: Lessons to Be Learned from a Case Against a State-owned Telecommunication Company.

Author(s): Rasa Zaščiurinskaitė / Language(s): English Issue: 15/2017

6th International PhD Students’ Conference on Competition Law. Białystok, 27 April 2017

Author(s): Magdalena Knapp,Paulina Korycińska-Rządca / Language(s): English Issue: 15/2017

Editorial foreword

Author(s): Anna Piszcz / Language(s): English Issue: 14/2016

Contracts and Automation: Exploring the Normativity Of Automation in the Context of U.S. Contract Law And E.U.Consumer Protection Directives

Author(s): Daniel Barnhizer / Language(s): English Issue: 14/2016

Given a choice between two systems of contract rules, a court or legislature may have a normative obligation to adopt the rule that is more susceptible to coding and automation. This paper explores the ramifications of that normative proposition through the lens of multiple contract doctrines that traditionally involve “messy” judgments or multiple interacting judgments regarding which human beings are – arguably – capable of making finely nuanced analyses. Using the common law doctrine of unconscionability and Polish Civil Code Article 385 on unfair terms in consumer contracts, this paper explores the differences between contract rules that require human analysis versus those that can be applied with strong reliability by automated processes. Finally, the paper analyzes some of the potential pitfalls of this normative proposition in light of technological, economic, and moral/ethical concerns.

The Principle of Liability in Private Antitrust Enforcement In Selected European States in Light of the Implementation of the Damages Directive into the Polish Legal System

Author(s): Dominik Wolski / Language(s): English Issue: 14/2016

In the vast majority of European countries, private antitrust enforcement falls under general rules of civil law. One of the issues to be discussed in relation to this type of litigation is the principle of liability, which exists in the given legal system, and its presumed impact on private enforcement. This problem has been debated in the course of the implementation works on the Damages Directive into the Polish legal system. A discussion on the principle of liability has taken place at least twice in this context. First, the issue was considered by the Civil Law Codification Commission and expressed in its Assumptions behind the Draft Act on complaints for damages caused by the breach of competition law. Subsequently, the principle of liability was assessed again at the reconciliation conference held at the Ministry of Justice. This is but a part of a broader discussion about the relationship between the rule of liability existing in national laws being applied to private enforcement cases and EU law as well as limitations arising from the latter. After outlining this interplay, the paper will briefly introduce solutions adopted with respect to the principle of liability in the context of private enforcement in selected European countries. The selection is not random, despite the fact that a limited number of countries has been analysed – eight including Poland. These include the most advanced EU Member States when it comes to private antitrust enforcement (such as the UK, Germany or the Netherlands), along with less developed examples (such as Italy or France), and even underdeveloped countries when it comes to the number and popularity of private antitrust litigations (such as Lithuania and Poland). This sort of analysis paints a relatively comprehensive picture of the adopted solutions in relation to the principles of liability governing private enforcement cases in Europe. The same is true for the issue of the burden of proof and presumptions/binding power in civil proceedings of decisions issued by competition authorities. Furthermore, what seemed to be crucial for the drafters of the Damages Directive, this sort of analysis makes it possible to formulate certain conclusions with respect to the relationship between the effectiveness of private enforcement in a given State and the adopted principle of liability. The final conclusions understandably focus on the Polish example, that is, the implementation of the Damages Directive into the Polish legal system.

A Comparative Analysis of the Collective Dominance Definition in Ukrainian and European Law – the Electricity Market Case

Author(s): Kseniia Smyrnova / Language(s): English Issue: 14/2016

This paper follows a comparative approach to the analysis of collective dominance doctrine and practice in the EU and the enforcement practice in Ukraine. The aim of this paper is to assess the compliance of the Ukrainian competition authority’s (AMCU) analysis of the national electricity market with EU law enforcement practice. The latter arises from Ukraine’s wider duty to fulfil its international law obligation to comply with EU competition rules, based on Article 18 of the Treaty establishing the Energy Community also taking into account the interpretative criteria developed in EU case law (according to Article 94 of the Association Agreement between Ukraine and the EU). Article 255 of the Association Agreement, which clearly provides for the use of the principle of transparency, non-discrimination and neutrality when complying with the procedures of fairness, justice and the right of defence, also illustrates the necessity of carrying out research in this field. The paper examines notions such as: the dominance doctrine, market power definition, economic strength and collective dominance in the EU enforcement practice. Special attention is placed on enforcement practice in the electricity market. Since the scrutinised market inquiry constitutes the first investigation into the Ukrainian electricity market, there is no national practice on this issue yet. For this reason, the analysis follows a wide comparative approach towards the principles of collective dominance in the electricity market in Ukraine. The paper concludes that the AMCU’s approach to the regulation of the electricity market in Ukraine confirms the necessity to reform the system of state regulation in the wholesale electricity market and in the market of services for electricity transmission. In order to develop competition in the electricity market, it is also necessary to change the system for tariff and pricing policy formation on the part of the National Energy and Utilities Regulatory Commission of Ukraine and the Ministry of Energy and Coal-Mining Industry of Ukraine. Stressed is also the necessity to follow the approach and criteria of EU competition law with regard to the determination of market dominance. This requirement is stipulated by Ukraine’s international legal obligations arising from Articles 18 and 94 of the Treaty establishing the Energy Community and Article 255 of the Association Agreement between the EU and Ukraine

Competition Law and State Aid for Failing Banks in the EU and its Specific Implications for CEE Member States

Author(s): Virág Blazsek / Language(s): English Issue: 14/2016

The bank bailouts following the global financial crisis of 2008 have been subject to prior approval of the European Commission (EC), the competition authority of the European Union. The EC was reluctant to reject rescue efforts directed at failing banks and so it consistently approved all such requests submitted by Member States. Out of the top twenty European banks, the EC authorized State aid to at least twelve entities. In this context, the paper outlines the gradually changing interpretation of EU State aid rules, the “temporary and extraordinary rules” introduced starting from late 2008, and the extension of the “no-State aid” category. The above shifts show that the EC itself deflected from relevant EU laws in order to systemically rescue important banks in Europe and restore their financial stability. The paper argues that bank bailouts and bank rescue packages by the State have led to different effects on market structures and consumer welfare in the Eurozone and non-Eurozone areas, mostly the Eastern segments of the European Union. As such, it is argued that they are inconsistent with the European common market. Although the EC tried to minimize the distortion of competition created as are sult of the aforementioned case law primarily through the application of the principle of exceptionality and different compensation measures, these efforts have been at least partially unsuccessful. Massive State aid packages, the preferential treatment of the largest, or systemically important, banks through EU State aid mechanisms – almost none of which are Central and Eastern European (CEE) – may have led to the distortion of competition on the common market. That is so mainly because of the prioritization of the stability of the financial sector and the Euro. The paper argues that State aid for failing banks may have had important positive effects in the short run, such as the promotion of the stability of the banking system and the Euro. In the long-run however, it has contributed to the unprecedented sovereign indebtedness in Europe, and contributed to an increased economic and political instability of the EU, particularly in its most vulnerable CEE segment.

So Close, So Different – Regional Rail Transport in Poland, The Czech Republic and Slovakia

Author(s): Marcin Król,Jakub Taczanowski / Language(s): English Issue: 14/2016

The objective of this paper is to present three different models of regional railway passenger transport that emerged in the process of post-communist transition after 1989 in neighbouring countries: Poland, the Czech Republic and Slovakia. After an introduction, the second section of the paper shows the historical, spatial and socio-economic context of the analysis. The three resulting models are presented in the following section. This part of the paper is also devoted to the discussion of the developments, experiences and results obtained in Poland, the Czech Republic and Slovakia. The final section provides conclusions.

Merger Control in Georgia – National Legislation and Case Law Review

Author(s): Solomon Menabdishvili / Language(s): English Issue: 14/2016

Georgia has amended its Law on Competition in 2014 in order to fulfil its obligations set out by the Association Agreement with the European Union. Despite further approximations of its laws with those of the EU, some serious flaws remain. Merging parties are obliged to submit a prior notification to the Competition Agency of Georgia if their total turnover exceeds 20 million Georgian lari (GEL) or if the value of their assets exceeds 10 million GEL (7,692,307 EUR). One of the most interesting aspects of the Georgian merger control system rests in what the Competition Agency is authorised to do in case of a failure to fulfil the notification duty. This paper will discuss Georgian rules on concentrations as well as two of its recent merger cases

Antitrust Liability in the Context of Online Platforms. Case Comment to the Preliminary Ruling of the Court of Justice of 21 January 2016 ‘Eturas’ UAB v Lietuvos Respublikos konkurencijos taryba (Case C-74/14)

Author(s): Bartosz Targański / Language(s): English Issue: 14/2016

Evaluation of Pre-accession State Aid in the Energy Sector. Case Comment to the Judgment of the Court of Justice of 1 October 2015 Electrabel SA, Dunamenti Erőmű Zrt. v European Commission (Case C-357/14 P)

Author(s): Tihamér Tóth / Language(s): English Issue: 14/2016

Piotr Semeniuk, Koncepcja jednego organizmu gospodarczego w prawie ochrony konkurencji [The Concept of a Single Economic Unit in Competition Law], University of Warsaw Faculty of Management Press, Warsaw 2015, 325 p.

Author(s): Agata Jurkowska-Gomułka / Language(s): English Issue: 14/2016

The Pursuit Before Polish Courts of Actions for Damages Based On Competition Law Infringements. Warsaw, 20 April 2016

Author(s): Paulina Korycińska-Rządca / Language(s): English Issue: 14/2016

Third National Conference: Consumer in the Rail Passenger Market. Łódź, 25 May 2016

Author(s): Katarzyna Chojecka,Marcin Kraśniewski,Tomasz Mizioch,Agnieszka Sobierajska / Language(s): English Issue: 14/2016