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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