Kate Pollock and Matthew Tighe have provided an expert analysis chapter to the International Comparative Legal Guide – Competition Litigation 2022. This claimant’s guide to recovering cartel damages in England is part of a book offering practical cross-border insights into competition litigation.
Below is the third of four parts of the chapter, examining losses recoverable in cartel litigation and practicalities. The full chapter is available to read for free here.
Brexit and the legal basis of competition claims
The UK left the EU at 11pm (UK time) on 31 January 2020. Whilst a hard Brexit was avoided when the EU-UK Trade and Cooperation Agreement was completed on 24 December 2020, there are still areas of uncertainty in how the English courts will continue to harmonise with their European counterparts on competition law, jurisdiction and enforcement rules in the future.
The statutory basis for most cartel damages claims, Article 101 Treaty on the Functioning of the European Union (“TFEU”), continues to be relevant for anticompetitive conduct which took place before the end of the transition period in relation to rights accrued to a claimant.
For anticompetitive conduct which took place only after the end of the transition period, Article 101 TFEU can continue to be pleaded, but as a breach of EU law (as opposed to the laws of England and Wales) where evidence of foreign law would need to be produced. Claims issued in the English courts and governed by English law will rely on a breach of Chapter I of the Competition Act 1998 (the territorial scope of which is more limited than Article 101 TFEU).
Where the European Commission has “continued competence” in relation to proceedings it initiated prior to the end of the transition period, Commission decisions adopted after that date will remain binding on the English courts.
In other words, follow-on proceedings will continue to be brought in the UK for a number of years to come. Where Commission decisions fall out of the continued competence regime, claims would be brought on a stand-alone basis (i.e. Commission decisions are no longer binding on English courts). However, it is not clear whether the burden on a claimant will become significantly higher in practice. Even in a follow-on claim relying on a Commission decision, a claimant must establish that the cartel has caused it to suffer loss.
Furthermore, the English courts may still consider a finding of infringement in a Commission decision to be highly persuasive prima facie evidence of cartel conduct. There may also be no requirement for English courts to wait for the Commission decision to be made final (i.e. the time for appeals has expired or the final appeals have been heard) before makings its own determination, in contrast to the position previously where claims were usually delayed or stayed pending the final outcome.
For proceedings commenced on or after 1 January 2021, the RBR will not apply. Therefore, parties will need to consider the impact of this on jurisdiction where the proceedings are connected to EU jurisdictions.
In response to Brexit, the UK has acceded to the Hague Convention on Choice of Court Agreements (“the Hague Convention”), which protects exclusive choice of jurisdiction clauses in the courts of signatory states. Those states are the EU, as well as Singapore, Mexico, Montenegro and now also the UK in its own name. The Hague Convention is not a complete replacement for the RBR.
In the absence of any choice of jurisdiction clause, the English courts will apply its common law, enabling the English courts to accept jurisdiction on the basis of relevant connecting factors. These include the location of defendants, connections to anchor defendants, as well as other factors such as choice of law clauses, location of relevant events, and the likely governing law of the dispute. This involves the English courts conducting a balancing exercise and using its discretion as to whether England is the most suitable jurisdiction, when cases are presented to it.
This is quite different to the more codified position that had been in existence through the European regime. The English courts may also have increased flexibility to issue anti-suit injunctions in appropriate cases.
Service, the Lugano Convention and consistency with EU law
Prior to Brexit, English proceedings could be served in the EU without the permission of the English courts via the EU Service Regulation. This will now only be the case where the documents were provided to the relevant official service agents by 31 December 2020 (even if service itself had not taken place) or where a Hague Convention jurisdiction clause is relied upon.
For all other proceedings, claimants will have to seek the English court’s permission before serving any claim form outside the UK, which will involve satisfying the court on an ex parte application that the claim has merit and that the English court has jurisdiction. Care is needed when making such an application to the English courts, particularly when made on an ex parte basis.
In particular, litigants must be very careful to consider whether the system of law under which a case is brought has any potential limitation issues. If so, this must be presented to the English courts, or else service of proceedings may be set aside by a defendant.
Most of the gaps in relation to jurisdiction and enforcement arising as a result of Brexit should be resolved by the UK’s accession, as an independent signatory, to the Lugano Convention. The UK has applied for accession as an independent signatory, but at the time of writing this has not yet been agreed by the EU (Iceland, Norway and Switzerland have all approved the UK’s accession).
The English courts, prior to the end of the transition period, were required to ensure that there was no inconsistency between their decisions and decisions reached by EU courts in relation to determining a corresponding issue under EU law, with very limited exceptions. There is now no such consistency obligation in respect of future EU case law after 1 January 2021, although the English courts may still have regard to it.
Competition specific EU/UK agreement
On 11 May 2021, the European Commission adopted a recommendation for a decision to authorise negotiations for a cooperation agreement on competition matters between the EU and the UK. This would be separate from the EU-UK Trade and Cooperation Agreement. The envisaged competition cooperation agreement may include conditions for the exchange and use of confidential information in antitrust matters and the application of EU competition law. The EU has similar agreements with other third countries, such as the US, Canada and Japan.
Regardless of Brexit, there is no doubt that the UK remains one of the leading jurisdictions for cartel damages claims. There are features of litigation in the UK that are seen as favourable towards claimants and are unaffected by EU membership (or lack thereof). For example, the English rules on disclosure are relatively generous and are attractive to claimants in cartel litigation, where asymmetry of information between the claimants and cartelists is common.
There is also a high level of expertise within the judiciary, which includes a specialist tribunal (the CAT) as well as judges in the commercial courts with extensive amounts of cartel damages claims experience. Finally, the relative speed at which litigation progresses compared to other European jurisdictions and a mature competition bar are enduring features of English cartel litigation post-Brexit.
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