Croatia: Influence Of A Directive On Damages Actions On The Croatian Legal Regime

Will the implementation of the Directive on Antitrust Damages Actions spur further progress on Croatian private enforcement?

Elements of private enforcement in Croatian law

The most recent amendments to the Croatian Competition Act (Act), which entered into force on 1 July 2013, have brought the long-anticipated first breath of systematic regulation of private enforcement. The amendments, primarily contained in Article 69a of the Act, are expected, with good reason, to provide initial impetus in procedures before Croatian courts to all parties that have suffered harm.1

Proposal for a directive2

Simultaneously with the adoption of the amendments to the Act, at the EU level, a process of alignment of regulations on damages actions for infringements of competition law was under way (and is still ongoing) as the EU Commission adopted a proposal for a directive on damages actions for infringements of the competition law provisions (Directive).

Regardless of the different expert views on the adoption of the Directive, its effects are far reaching and it leaves a number of open issues on implementation within the Croatian legal framework. Therefore, it is a pity that the proposal for the Directive was not considered more seriously in connection with the adoption of the amendments to the Act.

Issues regulated by the Directive

The Directive represents an attempt to align the procedural regulations of the member states with regard to (i) the disclosure of evidence in compliance with the principles of proportionality and protection of confidential information, as well as with regard to access to case files of the competition authorities; (ii) provisions that set the minimum limitation period; (iii) joint liability of offenders for suffered harm, with certain exceptions; (iv) detailed rules on the passing of overcharges and quantification of harm, and (vi) consensual dispute resolution.

Implications of the Directive

Interestingly, within the Croatian procedural rules (whether in the Act or the Civil Procedure Act), there are already solutions that (at least partly) comply with the requirements of the Directive. On the other hand, the implementation will certainly have to be carefully planned, given that the requirements of the Directive affect some of the institutions that are easily understandable and have been confirmed in detail by case law.

An example of the solution already known in the Croatian legal regime

The Directive stipulates the right to claim full compensation for the suffered harm, which includes compensation for actual loss and for loss of profit3, and interest. Such solution is already fully accepted as a standard in the Croatian law.

Furthermore, the Directive envisages the binding effect of final decisions of national competition authorities or by reviewing courts, meaning that the courts cannot take decisions running counter to agreements, decisions, or practices that are already the subjects of a final infringement decision.

However, the amendments to the Act provided that the court when deciding on damage action shall take particularly into account the final decision of the Competition Agency or EU Commission. Thus, the amendments to the Act do not stipulate that the court is bound by the final decision of the Agency, which will eventually be corrected, in our opinion, via a stabile body of case law on the preliminary questions. Pursuant to court practice, the court is bound by a final administrative act within the boundaries of finality on the existence of certain rights or legal relationships.4

Possible additional interventions in procedural rules

It should be pointed out that the rules of civil procedure regulate gradual and manifestation lawsuits governed by article 186b of the Civil Procedure Act and that might to some extent meet the requirements set by the Directive on disclosure of evidence.5 But the provisions regarding the manner, the classification of documents, and when those documents may be disclosed will have to be adopted separately. The Directive clearly defines that national courts, for example, cannot order a party or a third party to disclose leniency corporate statements or settlement submissions. In this sense, additional restrictions, or a completely new institution, will have to be introduced to answer to the requirements of the Directive.

In addition, the manner in which the statute of limitation is recognised by the Directive is something that will have to be carefully implemented into the system, since it represents a novelty for damages actions, where the subjective deadline of the statute of limitations would be extended from three to five years.

Also, although it is reasonable to conclude that courts would take the same stand as the Directive (undertakings that have infringed competition law through joint behaviour are jointly and severally liable for the damage caused by the infringement), an intervention will be necessary and measures will have to be implemented to at least protect the leniency applicant.6

Quote: A proposal for a Directive on damages actions for breaches of EU Competition law, if adopted in its present form, will have an immense impact on civil procedure in that the actions for damages for competition law infringements will be treated separately from the general process institutions.

Footnotes

[1] According to available information, the implementation of this instrument of enforcement has not been confirmed yet in procedures before Croatian courts.

[2] Directive 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.

[3] The directive, however, only acknowledges established EU case law (eg, Joined Cases C‑295/04 to C‑298/04 Manfredi and Others).

[4] Thus, a contrario civil court may only decide on the preliminary issue outside the boundaries of final administrative act (or decision of the review court); eg, ruling of the High Commercial Court of the Republic of Croatia (Visoki trgovački sud Republike Hrvatske), case no. P~-2871/01 of 3 June 2003.

[5]  Elements of rules on submission of documents in the possession of the other party, as prescribed by Article 233 of the Civil Procedure Act, may also be used.

[6] Article 11 para 2 of the Directive prescribes that an undertaking granted immunity from fines by a competition authority under a leniency programme is liable to injured parties other than its direct or indirect purchasers or providers only when such injured parties show that they are unable to obtain full compensation from the other undertakings involved in the same competition law infringement.

This article was originally published in the schoenherr roadmap`14 - if you would like to receive a complimentary copy of this publication, please visit: pr.schoenherr.eu/roadmap.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions