New Antitrust Damages Act reshapes the rules and proceedings in Finland
The report of the working group set up by the Ministry of Employment and the Economy to prepare the national implementation of the EU Directive on antitrust damages actions (2014/104/EU) in competition law was recently published in Finland. Drafted as a Government proposal, the report proposes a new separate Act on reparation of damages caused by antitrust infringements coming into force no later than 27th December 2016. Read the report (currently only available in Finnish) here.
Thus far no such legislation has existed. In Finland, a section in the Competition Act and the Code of Judicial Procedure, have constituted the primary sources of regulation. As with the EU Directive, the Finnish damages Act aims to, inter alia, clarify and ease the prosecution of damages claims and their processing, and to ensure a full compensation from damages. The national antitrust Act law shall also apply to restraints with no significant effect on trade between the Member States.
The Directive regulates compensation for antitrust infringements in greater detail than existing national legislation, and entails a few substantive changes to the prevailing national system. These will include provisions on, inter alia, presumption of harm as to cartels, burden of proof of the defendant and intermediate buyer for showing the passing on overcharges, limitation of joint liability, and recourse liability for an undertaking with immunity through leniency, as well as provisions on the impact of an infringement decision on the disclosure of evidence, on impact of consensual dispute resolution and on damages court proceedings.
The new Act can be cautiously welcomed for possibly lowering the bar for those seeking for compensation, and thus also pursuing the prominent objective triggered by the ECJ in its seminal judgment Courage v. Crehan (C-453/99), which is discussed in Chapter 16(7), Litigating in the National Courts, Actions for Damages of Vivien Rose and David Bailey (eds) Bellamy & Child: European Union Law of Competition (7th end OUP 2013). Whilst it is still early days, it may thus also have positive effect on the magnitude of private enforcement in Finland where follow-on damages actions are still rare, hitherto the most prominent one been the so-called asphalt cartel (pending). Then again, the Act leaves several issues for the case law to tackle, for example the quantification of damages to name an important and often the most difficult one in practice. Thus, its impact on increasing the number of damages actions and eventually gaining compensation from antitrust infringements remains to be seen.
Information on private enforcement and actions for damages can be found in Chapter 8 ‘Articles 101 and 102: private enforcement in the courts of Member States, 2 Actions for an Injunction and/or Damages’ in Richard Whish and David Bailey (eds) Competition Law (7th edn OUP 2012). Information on quantification of damages in Communication from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union (Text with EEA relevance) (2013/C 167/07) (European Commission)  OJ C 167/19 may also be of interest.
Read a sample Finnish report on the Asphalt Cartel case on OCL. For a more indepth analysis of antitrust damages in Finland please click here.
Dr Mika Oinonen, Counsel, Adjunct Professor of Competition Law and Policy, Lexia Attorneys Ltd
Image: By Thamizhpparithi Maari (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons
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