Saturday 15 September 2018

No deal and competition law damages claims – a technical note




The UK government has published 25 notices setting out its preparations for the possibility of the UK leaving the EU without a deal being in place after 29 March 2019 (‘exit day’).

The notice on ‘merger review and anticompetitive activity’ says that after exit day claimants will no longer be able to rely on the binding effect of a European Commission infringement decision in follow-on damages actions.

Currently, in a follow-on claim claimants in the UK may rely on a decision of the Commission in order to establish liability for an infringement, although proving loss and causation remains an issue.  According to the notice, in a no deal scenario claimants in the UK will not be able to rely on the binding effects of Commission decisions.  Infringement decisions that are made by the Commission before exit day may still be relied on as proof of liability in the UK courts.

The possibility has been left open of enforcing Commission decisions in the UK courts through a claim founded on a foreign tort.

The notices state no more than what is the logical result of a no deal scenario.  Although the note maintains that such a result remains unlikely, it may be expected to have a dampening effect on the attractiveness of the UK as a venue for bringing private damages claims founded on Commission decisions, all things being equal.

Perhaps the bigger issue is the extent to which Commission decisions will be persuasive authority before the UK courts.  If the UK courts treat such decisions as highly compelling evidence the practical difference may be slight.







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