Regulations, 2017

L.N. 117 of 2017

COMPETITION ACT

(CAP. 379)

Competition Law Infringements (Actions for Damages)

Regulations, 2017

IN exercise of the powers conferred upon him by article 32 of

the Competition Act, the Minister for Social Dialogue, Consumer

Affairs and Civil Liberties has made the following regulations:-

(1)

The title of these regulations is the Competition

Law Infringements (Actions for Damages) Regulations, 2017.

(2) The provisions of these regulations shall be deemed to

have come into force on the 27th December, 2014, except article 10

which shall come into force on such date as the Minister may, by

notice in the Gazette, establish.

These regulations implement the provisions of Directive

2014/104/EU of the European Parliament and of the Council of 26

November 2014 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.

In these regulations, unless the context otherwise requires -

"Act" means the Competition Act;

"action for damages" means an action pursuant to these

regulations by which a claim for damages is brought before a national

court by an alleged injured party, or by someone acting on behalf of

one or more alleged injured parties, or by a natural or legal person

that succeeded in the right of the alleged injured party, including the

person that acquired the claim;

"cartel" means an agreement or concerted practice between two

or more competitors aimed at coordinating their competitive

behaviour on the market or influencing the relevant parameters of

competition through practices such as, but not limited to, the fixing or

coordination of purchase or selling prices or other trading conditions,

including, in relation to intellectual property rights, the allocation of

production or sales quotas, the sharing of markets and customers,

including bid-rigging, restrictions of imports or exports or anti-

competitive actions against other competitors;

"claim for damages" means a claim for compensation for harm

caused by an infringement of competition law;

"competition authority" means the European Commission or

any national competition authority, as the context may require;

"competition law" means Articles 101 and 102 TFEU and, or

articles 5 and 9 of the Act or the provisions of national law that

predominantly pursue the same objectives as Articles 101 and 102

TFEU and that are applied to the same case and in parallel to Union

competition law pursuant to Article 3(1) of Council Regulation No. 1/

2003, excluding provisions of national law which impose criminal

penalties on natural persons, except to the extent that such criminal

penalties are the means whereby competition rules applying to

undertakings are enforced, as may be applicable in a particular case;

"consensual dispute resolution" means any mechanism enabling

parties to reach the out-of-court resolution of a dispute concerning a

claim for damages;

"consensual settlement" means an agreement reached through

consensual dispute resolution;

"court" means a court of civil jurisdiction in Malta as

established under the Code of Organization and Civil Procedure or Cap. 12.

any tribunal having jurisdiction in competition matters established

under any special law;

"direct purchaser" means a natural or legal person who

acquired, directly from an infringer, products or services that were the

object of an infringement of competition law;

"evidence" means all types of means of proof admissible before

the court, in particular documents and all other objects containing

information, irrespective of the medium on which the information is

stored;

"final infringement decision" means an infringement decision

that cannot be, or that can no longer be, appealed and which has

accordingly become a res judicata;

"infringement decision" means a decision of a competition

authority or a national court that finds an infringement of competition

law;

"infringement of competition law" means an infringement of

Article 101 or 102 TFEU and, or of article 5 or 9 of the Act or any

equivalent provision of the national law of another Member State;

"infringer" means an undertaking or association of undertakings

which has committed an infringement of competition law;

"immunity recipient" means an undertaking which, or a natural

person who, has been granted immunity from penalties by a

competition authority under a leniency programme;

"indirect purchaser" means a natural or legal person who

acquired, not directly from an infringer, but from a direct purchaser or

a subsequent purchaser, products or services that were the object of

an infringement of competition law, or products or services

containing them or derived therefrom;

"injured party" means a person that has suffered harm caused by

an infringement of competition law;

"leniency programme" means a programme concerning the

application of Article 101 TFEU or article 5 of the Act, or equivalent

provisions of another Member State, on the basis of which a

participant in a secret cartel, independently of the other undertakings

involved in the cartel, cooperates with an investigation of the

competition authority, by voluntarily providing presentations

regarding that participant’s knowledge of, and role in, the cartel in

return for which that participant receives, by decision or by a

discontinuation of proceedings, immunity from, or a reduction in,

penalties for its involvement in the cartel;

"leniency statement" means an oral or written presentation

voluntarily provided by, or on behalf of, an undertaking or a natural

person to a competition authority or a record thereof, describing the

knowledge of that undertaking or natural person of a cartel and

describing its role therein, which presentation was drawn up

specifically for submission to the competition authority with a view

to obtaining immunity or a reduction of penalties under a leniency

programme, not including pre-existing information;

"national competition authority" means an authority designated

by a Member State pursuant to Article 35 of Regulation (EC) No 1/

2003, as being responsible for the application of Articles 101 and 102

TFEU;

"national court" means a court or tribunal of a Member State

within the meaning of Article 267 TFEU;

"overcharge" means the difference between the price actually

paid and the price that would otherwise have prevailed in the absence

of an infringement of competition law;

"pre-existing information" means evidence that exists

irrespective of the proceedings of a competition authority, whether or

not such information is in the file of a competition authority;

"review court" means a national court that is empowered by

ordinary means of appeal to review decisions of a national

competition authority or to review judgments pronouncing on those

decisions, irrespective of whether that court itself has the power to

find an infringement of competition law;

"settlement submission" means a voluntary presentation by, or

on behalf of, an undertaking to a competition authority describing the

undertaking's acknowledgement of, or its renunciation to a dispute, its

participation in an infringement of competition law and its

responsibility for that infringement of competition law, which was

drawn up specifically to enable the competition authority to apply a

simplified or expedited procedure;

"TFEU" means the Treaty on the Functioning of the European

Union.

(1)

Any natural or legal person who has suffered Right to full

damage caused by an infringement of competition law shall be compensation.

entitled to claim and to obtain full compensation for that damage,

which action shall be instituted in accordance with the provisions the

Code of Organization and Civil Procedure, or as may be provided in Cap. 12.

any other special legislation.

(2) For the purposes of these regulations, a person shall be

deemed to have suffered damage even where that person is not the

immediate customer or provider of the defendant.

(3) Full compensation shall place a person who has suffered

harm in the position in which that person would have been had the

infringement of competition law not been committed. It shall

therefore cover the right to compensation for actual loss and for loss

of profit as well as the payment of interest from the time the damage

occurred until the capital sum awarded is actually paid

Provided that full compensation under these regulations

shall not lead to over-compensation, whether by means of punitive,

multiple or other types of damages.

(1)

In proceedings relating to an action for damages Disclosure of

pursuant to regulation 4, the claimant shall present a reasoned evidence.

justification containing reasonably available facts and evidence

sufficient to support the plausibility of the claim for damages.

(2) The court shall have the power, upon request of the

claimant, to order the disclosure of relevant evidence by the

defendant or a third party, where such evidence lies in their control, in

accordance with the provisions of the Code of Organization and Civil

Procedure, or as may be provided in any other special legislation,

subject to the conditions set out in these regulations. It shall also have

the power, upon request of the defendant, to order the claimant or a

third party to disclose relevant evidence. This sub-regulation is

without prejudice to the rights and obligations of the court under

Council Regulation (EC) No 1206/2001

Provided that the court may, where it so deems appropriate

in the circumstances, order the disclosure of specified items of

evidence or relevant categories of evidence circumscribed as

precisely and as narrowly as possible on the basis of reasonably

available facts in the reasoned justification presented by the claimant.

(3) The court shall limit the disclosure of evidence to that

which is proportionate. In determining whether any disclosure

requested by a party is proportionate, the court shall consider the

legitimate interests of all parties and third parties concerned and it

shall, in particular, consider

(a)

the extent to which the claim or defence is

supported by available facts and evidence justifying the request

to disclose evidence;

(b)

the scope and cost of disclosure, especially for any

third parties concerned, including preventing non-specific

searches for information which is unlikely to be of relevance for

the parties in the procedure;

(c)

whether the evidence the disclosure of which is

sought contains confidential information, especially concerning

any third parties, and what arrangements are in place for

protecting such confidential information.

(4) The court shall have the power to order the disclosure of

evidence containing confidential information where it considers it

relevant to the action for damages. When ordering the disclosure of

such information the court shall adopt any effective measures,

pursuant to the provisions of the Code of Organization and Civil

Procedure, or to the provisions of any other special legislation, which

it deems necessary or appropriate in the circumstances to protect such

information in accordance with the applicable legislation

Provided that this sub-regulation shall be without prejudice

to the applicability of the duty of professional secrecy pursuant to the

provisions of the Professional Secrecy Act, the Data Protection Act, Cap. 377.

the Official Secrets Act and any other professional secret as classified Cap. 50.

under the law of any Member State or of the European Union.

(5) The interest of undertakings to avoid actions for damages

following an infringement of competition law shall not constitute an

interest capable of protection.

(6) Prior to ordering the disclosure of any evidence the court

shall give that person the opportunity to present any submissions or

objections concerning such disclosure.

(7) Without prejudice to sub-regulations (4) and (6) and to

regulation 6, this regulation shall not prejudice the applicability of

any provision of the Code of Organization and Civil Procedure, or of Cap. 12.

any other applicable legislation, which would lead to wider disclosure

of evidence.

(1)

For the purpose of actions for damages pursuant to Disclosure of

these regulations, the court shall have the power to order the evidence

included in the

disclosure of evidence included in the file of a competition authority, file

competition

as the case may be, subject to the conditions set forth hereunder. In authority.

such cases, the provisions of regulation 5 shall apply in addition to

this regulation.

(2) This regulation is without prejudice to the rules and

practices on public access to documents pursuant to Regulation (EC)

No 1049/2001, and to the rules and practices under the laws of Malta

or the European Union on the protection of internal documents of

national competition authorities and of correspondence between

competition authorities.

(3) When assessing, in accordance with regulation 5(3), the

proportionality of an order to disclose information the court shall, in

addition, consider the following

(a)

whether the request has been formulated

specifically with regard to the nature, subject matter or contents

of documents submitted to a competition authority or held in the

file thereof, rather than by a non-specific application concerning

documents submitted to a competition authority;

(b)

whether the party requesting disclosure is doing so

in relation to an action for damages pending before it; and

(c)

in relation to sub-regulations (4) and (9), or upon

request of a competition authority pursuant to sub-regulation

(10), the need to safeguard the effectiveness of the public

enforcement of competition law.

(4) The court may order the disclosure of the following

categories of evidence only after a competition authority, by adopting

a decision or otherwise, has closed its proceedings

(a)

information that was prepared by a natural or legal

person specifically for the proceedings of that competition

authority;

(b)

information that the competition authority has

drawn up and sent to the parties in the course of its proceedings;

and

(c)

settlement submissions that have been withdrawn.

(5) The following categories of evidence cannot, in an action

for damages, at any time, be the subject of an order for disclosure

(a)

leniency statements; and

(b)

settlement submissions.

(6) A claimant may present a reasoned request that the court

access the evidence referred to in paragraphs (a) or (b) of sub-

regulation (5) for the sole purpose of ensuring that their contents

correspond to the definitions of "leniency statement" or "settlement

submission", as the case may be, in regulation 3. In making that

assessment, the court may request assistance exclusively from the

competent competition authority

Provided that, in cases referred to in this sub-regulation,

the authors of the evidence in question shall also have the possibility

to be heard

Provided further that in no case shall the court permit other

parties or third parties to access the evidence in question.

(7) If only parts of the evidence requested are covered by sub-

regulation (5), the remaining parts thereof shall, depending on the

category under which they fall, be released in accordance with the

relevant provisions of this regulation.

(8) The disclosure of evidence in the file of a competition

authority that does not fall into any of the categories listed in this

regulation may be ordered in actions for damages at any time, without

prejudice to the provisions of this regulation.

(9) The court shall only request the disclosure of evidence

included in the file of a competition authority where no party or third

party is reasonably able to provide that evidence.

(10) To the extent that a competition authority is willing to state

its views on the proportionality of a request for disclosure, it may,

acting on its own initiative, submit observations to the court before

which that disclosure order is sought.

(1)

Any evidence in the categories listed in regulation Limits on the

6(5), which is obtained by a natural or legal person solely through use

obtained solely

access to the file of a competition authority, shall be deemed through

to the file of a

inadmissible in actions for damages pursuant to these regulations.

competition

authority.

(2) Until the competent competition authority has closed its

proceedings by adopting a decision or otherwise, evidence in the

categories listed in regulation 6(4), which is obtained by a natural or

legal person solely through access to the file of that competition

authority, shall also be deemed inadmissible in actions for damages

pursuant to these regulations.

(3) Any evidence which is obtained by a natural or legal

person solely through access to the file of a competition authority, and

which does not fall under sub-regulation (1) or (2), can be used in an

action for damages only by that person or by a natural or legal person

that succeeded to that person’s rights, including a person that acquired

that person’s claim.

(1)

A court seized of an action for damages pursuant to Penalties.

these regulations shall have the power to impose penalties on any

party, third party and, or their legal representatives in the event of any

of the following

(a)

their failure or refusal to comply with a disclosure

order of the court;

(b)

their destruction of relevant evidence;

(c)

their failure or refusal to comply with the

obligations imposed by an order of the court protecting

confidential information;

(d)

their breach of the limits on the use of evidence

provided for in these regulations

Provided that for the purposes of this sub-regulation, the

court may impose any measure envisaged in the Code of Organization

and Civil Procedure, or in any other special legislation, which it

deems appropriate in the circumstances. The court shall ensure that

any penalty so imposed is effective, proportionate and dissuasive,

having regard to the seriousness of the offence.

(2) The penalties imposed pursuant to this regulation may

also, at the discretion of the court, include the following with regard

to the behaviour of a party to the proceedings

(a)

the possibility to draw adverse inferences, such as

presuming the relevant issue to be proven or dismissing claims

and defences in whole or in part; and

(b)

the possibility to order the payment of costs.

(1)

An infringement of competition law found by a

final decision of the national competition authority, the Appeals

Tribunal or any Court of Appeal in terms of the Act and, or of the

European Commission, shall be deemed to be irrefutably established

for the purposes of an action for damages brought pursuant to these

regulations.

(2) Where a final decision is taken by a national competition

authority of another Member State, that final decision may be

presented before the court seized of an action for damages pursuant to

these regulations as prima facie evidence that an infringement of

competition law has occurred, and may, at the discretion of the court,

be assessed along with any other evidence adduced by the parties.

(3) This regulation is without prejudice to the rights and

obligations of the court under Article 267 TFEU.

(1)

Notwithstanding the provisions of the Civil Code

or of any other law, an action for damages pursuant to these

regulations is prescribed by the lapse of five years.

(2) The period of prescription referred to in sub-regulation (1)

shall begin to run from the date when the infringement of competition

law has ceased and the claimant became aware, or can reasonably be

expected to have become aware

(a)

of the behaviour and the fact that it constitutes an

infringement of competition law;

(b)

of the fact that the infringement of competition law

caused harm to it; and

(c)

the identity of the infringer.

(3) The period of prescription referred to in sub-regulation (1)

shall be suspended where a competition authority takes action for the

purpose of the investigation or its proceedings in respect of an

infringement of competition law to which the action for damages

relates. The suspension shall end one year after the infringement

decision has become res judicata or after the proceedings are

otherwise terminated.

(4) The provisions of this regulation shall come into force on

such date as the Minister may provide by Notice in the Government

Gazette.

(1)

Undertakings which are found to have infringed Joint and

competition law through joint behaviour shall be jointly and severally several liability.

liable for the harm caused by the infringement, with the effect that

each of those undertakings is bound to compensate for the harm

caused in full, and the injured party has the right to require full

compensation from any of them until he has been fully compensated.

(2) Notwithstanding the provisions of sub-regulation (1) but

without prejudice to the right of full compensation as laid down in

regulation 4, where the infringer is a small or medium-sized

enterprise (SME) as defined in Commission Recommendation 2003/

361/EC, the infringer is liable only to its own direct and indirect

purchasers or providers where

(a)

its market share in the relevant market was below

5% at any time during the infringement of competition law; and

(b)

the application of the normal rules of joint and

several liability would irretrievably jeopardise its economic

viability and cause its assets to lose all their value.

(3) The exception laid down in sub-regulation (2) shall not

apply where

(a)

the SME has led the infringement of competition

law or has coerced other undertakings to participate therein; or

(b)

the SME has previously been found to have

infringed competition law.

(4) Notwithstanding the provisions of sub-regulation (1), an

immunity recipient shall be jointly and severally liable as follows

(a)

to its direct or indirect purchasers or providers; and

(b)

to other injured parties only where full

compensation cannot be obtained from the other undertakings

that were involved in the same infringement of competition law.

(5) Actions under this regulation shall be prescribed by the

same period as in regulation 10.

(6) An infringer in terms of these regulations may, by a

separate action, recover a contribution from any other infringer, the

amount of which shall be determined in the light of their relative

responsibility for the harm caused by the infringement of competition

law. The amount of contribution of an infringer which has been

granted immunity from penalties under a leniency programme shall

not exceed the amount of the harm it caused to its own direct or

indirect purchasers or providers.

(7) To the extent that an infringement of competition law is

found to have caused harm to injured parties other than the direct or

indirect purchasers or providers of the infringers, the amount of any

contribution from an immunity recipient to other infringers shall be

determined in the light of its relative responsibility for that harm.

(1)

In accordance with the provisions of these

regulations, any person who has suffered harm caused by an

infringement of competition law may claim compensation therefor,

irrespective of whether such claimant is a direct or indirect purchaser

from the infringer

Provided, however, that the compensation for actual loss

caused by the infringement of competition law to the claimant which

may be recovered in accordance with these regulations shall not in

any case exceed the overcharge harm suffered at the level of the

supply chain in which the claimant operates.

(2) These regulations shall be without prejudice to the right of

an injured party to claim and obtain compensation for loss of profits

due to a full or partial passing-on of the overcharge.

(3) In estimating the amount of harm suffered by the claimant

or the share of any overcharge that was passed on to the claimant, the

court may, without prejudice to the right of the parties to produce ex

parte expert witnesses, appoint one or more referees to assist it in

accordance with the provisions of the Code of Organization and Civil

Procedure, or as may be provided in any other special legislation. It

shall take due account of any guidelines issued by the European

Commission in this regard.

(4) These regulations shall apply mutatis mutandis where the

infringement of competition law relates to a supply to the infringer.

(1)

The defendant in an action for damages pursuant to Passing-on

these regulations may raise as a defence the fact that the claimant defence.

passed on the whole or part of the overcharge resulting from the

infringement of competition law.

(2) The burden of proving that the overcharge was passed on

shall be on the defendant, who may reasonably require disclosure

from the claimant or from third parties.

(1)

Where in an action for damages the existence of a Indirect

claim for damages or the amount of compensation to be awarded purchasers.

depends on whether, or to what degree, an overcharge was passed on

to the claimant, taking into account the commercial practice that price

increases are passed on down the supply chain, the burden of proving

the existence and scope of such a passing-on shall rest with the

claimant, who may reasonably require disclosure from the defendant

or from third parties.

(2) In the situation referred to in sub-regulation (1), the

indirect purchaser shall be deemed to have proven that a passing-on

to that indirect purchaser occurred where that indirect purchaser has

shown that

(a)

the defendant has committed an infringement of

competition law;

(b)

the infringement of competition law has resulted in

an overcharge for the direct purchaser of the defendant; and

(c)

the indirect purchaser has purchased the goods or

services that were the object of the infringement of competition

law, or has purchased goods or services derived from or

containing them.

(3) The provisions of sub-regulation (2) shall not apply where

the defendant can demonstrate credibly to the satisfaction of the court

that the overcharge was not, or was not entirely, passed on to the

indirect purchaser.

(1)

With a view to avoiding that actions for damages Actions for

by claimants from different levels in the supply chain lead to a damages

claimants from

multiple liability or to an absence of liability of the infringer, in different

in the supply

assessing whether the burden of proof resulting from the application chain.

of regulations 13 and 14 is satisfied, the court may take due account

of any of the following

(a)

actions for damages that are related to the same

infringement of competition law, but that are brought by

claimants from other levels in the supply chain;

(b)

judgments resulting from actions for damages as

referred to in paragraph (a);

(c)

relevant information in the public domain resulting

from the public enforcement of competition law.

(2) This regulation shall be without prejudice to the rights and

obligations of the court pursuant to Article 30 of Regulation (EU) No

1215/2012.

(1)

The burden of proving claims regarding the extent

of the harm suffered shall rest on the claimant

Provided that where it is established that the claimant

suffered harm, but it is impossible or excessively difficult to quantify

precisely the harm suffered on the basis of the evidence available, the

court may estimate the amount of harm including, in particular, on the

basis of arbitrio boni viri.

(2) It shall in any case be presumed that cartel infringements

cause harm

Provided that the infringer shall have the right to bring

forward evidence to rebut that presumption.

(3) A competition authority may, at the request of a court

seized of an action for damages pursuant to these regulations, assist

that court with respect to the determination of the quantum of

damages where the competition authority considers such assistance to

be appropriate.

(4) In establishing the quantum of damages the court shall take

into account the factual scenario that would have prevailed had the

infringement not taken place.

(1)

The prescriptive period referred to in regulation 10

shall be suspended for the duration of any consensual dispute

resolution process, exclusively with regard to those parties that are or

that were involved or represented in the consensual dispute

resolution.

(2) Without prejudice to the provisions of the Arbitration Act,

the court seized of an action for damages pursuant to these

regulations may, as it deems fit in the circumstances, suspend its

proceedings for a period of no longer than two years where the parties

thereto are involved in consensual dispute resolution concerning the

claim covered by that action for damages.

(3) The national competition authority may consider

compensation paid as a result of a consensual settlement, and prior to

its decision imposing a penalty, to be a mitigating factor.

(1)

Following a consensual settlement, the claim of the Effect of

settling injured party shall be reduced by the settling co-infringer’s consensual

settlements on

share of the harm that the infringement inflicted upon the injured subsequent

actions for

party.

damages.

(2) Any remaining claim of the settling injured party shall be

exercised only against non-settling co-infringers, who shall not be

permitted to recover contribution for the remaining claim from the

settling co-infringer

Provided, however, that where the non-settling co-

infringers cannot pay the damages that correspond to the remaining

claim of the settling injured party, the settling injured party may

exercise the remaining claim against the settling co-infringer, unless

such an option has been expressly excluded under the terms of the

consensual settlement.

(3) When determining the amount of contribution that a co-

infringer may recover from any other co-infringer in accordance with

their relative responsibility for the harm caused by the infringement

of competition law, the court shall take due account of any damages

paid pursuant to a prior consensual settlement involving the relevant

co-infringer.

In these regulations, if there is any conflict between the Conflict

between texts.

English and Maltese texts, the English text shall prevail.

B

€1.35