The ascertainment of the infringement by the competent competition authority is not a prerequisite for the civil jurisdictions. In other words, the victim is not obliged to defer first his case before the competition authority, but can address himself from the beginning to the civil court in order to obtain remedy of the damage incurred. Thus, the Law covers not only the so-called follow-on actions (i.e. actions filed with the court after the issuance of the competition authority’s decision for the infringement), but also the so-called standalone actions [see article 3 paragraph 2 of the Law].
What if the direct buyer transferred the overcharge to its clients (Passing-on defense)?
It is common place that the direct buyer of the infringer will have interest to pass-on the overcharge related to the infringement to his own clients and so on. Not recognizing this fact could lead to the possibility of the victims for undue enrichment. Therefore, the Law acknowledges that the respondent in an action on damages can suggest the passing-on defense either for the totality of the amount claimed or for a part of it. In this case, the passing on argument plays the role of an objection [see article 11 paragraph 2 of the Law]. However, as already said, presumed passing on of the overcharge can also function as basis of the claim of the remoted buyer against the infringer.
How the system of notifications is practically organized?
Often it is rather improbable that the victim possesses all the necessary evidence in order to establish properly his claim. The infringer may control crucial evidence (such as internal business notes, financial records, fiscal books etc. that may be considered as covered by
business secret). The Law establishes a system of compulsory notifications in order to facilitate the effective exercise of the rights of the victims [See articles 4-7 of the Law]. Thus, the claimant can ask, under specific conditions, the civil court to order the respondent or a third person to produce some evidence necessary for the establishment of the infringement and / or the establishment of the damage. The court may also ask the National Competition Authority (NCA) to produce some evidence incorporated in the administrative file of the case (follow-on actions), but only if said evidence cannot be reasonably produced by the respondent or a third party (last resort principle). For reasons of equity, the defender can also ask the court to order the claimant or a third party to produce evidence, necessary for founding a passing-on defense objection [See article 4 paragraph 1 of the Law].
The court will order the liable person for producing the requested evidence in respect of the principle of proportionality [see in particular article 4 paragraph 3 of the Law]. That means, that the court will take into consideration all conflicting interests of the parties (such as the well-founding of the request for disclosure, the coverage of the relevant evidence by the business secret rules and the cost and amplitude of the evidence to be disclosed especially when the request for disclosure is against third parties).
All possible evidence are not at any time notifiable, because private enforcement should not be of prejudice for the public enforcement of competition law by the European Commission and the HCC [see article 6 of the Law]. Basically, some evidence are never notifiable
(Black List), some other are notifiable only after the end of the administrative procedure before the NCA in whatever manner (Orange List) and some are notifiable at any time (White List), according to the following table:
Table: Disclosure of evidence
| Black List | Orange List | White List |
|
1. Leniency statements 2. Settlement submissions 3. Other documents containing self-esteem parts of the aforementioned documents under 1) and 2) |
1. information that was prepared by a natural or legal person specifically for the proceedings Authority 2. Information that the Competition Authority has drawn up and sent to the parties in the course of its proceedings including the Statement of Objections 3. Settlement submissions that have been withdrawn. |
Any other (not black or orange) evidence submitted to the NCA |
Which is the competent national court?
The Law provides for a single jurisdiction all over the country of the First Instance Tribunal of Athens and on appeal of the Court of Appeal of Athens for the actions covered by the Law. Special chambers should be created in these jurisdictions for that purpose, which should be operative as from 16.9.2018. Exceptionally only the procedural provisions of the Law will apply retroactively to actions filed with any civil courts from 26.12.2014 onwards. In review the case will be heard by the Supreme Civil Court (Areios Pagos).
In follow-on actions what is the Probative value of the decisions of the European Commission and of the National Competition authorities (NCAs)?
An infringement of competition law found by a final decision of the European Commission, of the Hellenic Competition Commission or of the Hellenic Telecommunications and Posts Committee (HTPC), acting as NCA or by a review court (General Court of the European Union’s final decisions, Court of the European Union’s decisions, Athens Administrative Court of Appeal’s final decisions or Council of the State’s decisions, according the case) is deemed to be irrefutably established for the purposes of an action for damages brought before
Greek civil court under Article 101 or 102 TFEU or articles 1 and 2 of law 3959/2011 [See article 11 paragraph 1].
Note however that the aforementioned obligations of the national civil court in terms of evidence value do not prejudice their rights and obligations under article 267 of TFEU, i.e. preliminary ruling to the Court of Justice of the European Union - CJ [See article 11 paragraph 3 of the Law]. Practically, that means that the aforementioned national lower courts special chambers will have always the possibility when trialing cases covered by the Law to ask for a preliminary ruling the Court of the European Union when legal matters still unclear in terms of EU Competition Law. The Supreme Civil Court (Areios Pagos) in reviewing the case will have self-evidently the same possibility, if the legal matters remain unclear and can pass-over the obligation to defer a request for preliminary ruling to the CJ only if during the whole process the legal matters have been absolutely clarified in view of the established jurisprudence of the CJ.
Where a final decision as above is taken in another Member State, this final decision may be presented before the Greek civil court as full evidence that an infringement of competition law has occurred, but counter proof is permitted [See article 11 paragraph 2 of the Law].
How the harm of the victim is quantified?
The quantification of the damage is often a difficult exercise for the claimant. Despite the fact that the special rules concerning the disclosure of evidence are expected to tease the relevant difficulties of the claimant, the definition of the damage still is a highly hypothetical task. Therefore, the Law establishes a merely liberal system of proof permitting to the judge to estimate the height of the damage, in case the exact amount of it cannot be defined with absolute accuracy. This would permit to the claimant to file with the court economic studies based on the so-called counterfactual scenario. In any case, the court can base the quantification of the damage only to speculation, if otherwise the quantification of the damage would be practically impossible or excessively difficult. The national judge is however intensively guided by the Commission in assessing the economic dimension of the damage suffered by the victim [e.g. see Communication of the Commission 2013/C 167/07 and other preparatory soft law texts available in http://ec.europa.eu/competition/ antitrust/actionsdamages/quantification_en.html ]
Limitation period
Time-limit for victims initiating civil actions under the Law does not fundamentally derogate from the common regime applicable to torts under Greek Civil Code (article 937 of the Greek Civil Code). Thus, the time-limit is in principle of five years running from the time the victim had effective knowledge (or is expected reasonably to have) of the infringer, of the accomplishment of the infringement and of the damage. But in case of continuous infringements, the time-limit runs as from its end, if it is posterior to the knowledge of the victim [See article 8 paragraph 1 of the Law].
Furthermore, running of time-limit period is suspended if the European Commission or an NCA initiates proceedings against the infringer and run afresh one year after the termination of the proceedings in whatsoever way or the administrative decision having become final [See article 8 paragraph 2 of the Law].
In case of cartels and if the infringer is covered by immunity of further administrative sanctions against him due to the fact that he has been submitted to a leniency program the limitation period runs only if forcible execution against the other infringers has been ended fruitlessly or the relevant compensation action against the other infringers has been finally rejected. However, this exception does not apply, if the claimant is a direct or indirect buyer or supplier of the infringer [See article 8 paragraph 3 of the Law]
In case of joint and several liability, the 5-year limitation period runs when the recourse claimant pays to the victim any amount of compensation exceeding its part of responsibility [See article 8 paragraph 4 of the Law]
Last but not least, the 5–year limitation period is suspended during the time of any fruitful or unfruitful consensual process of dispute resolution, self-evidently as per the parties participating to that process [See article 8 paragraph 5 of the Law].
