By 27 December 2016, the Croatian Parliament needs to implement
the Directive 2014/104/EU on antitrust damages actions
("Damages Directive"), which is expected to streamline
the procedure for private individuals and businesses to sue for
damages in cases of competition law infringements. Will Croatia be
successful in taking its cut of one of the fastest growing niche
areas in law, which in the EU alone is estimated at EUR 20
Competition law rules can be enforced in two principal ways
– either through public enforcement, which in the EU is the
task of national competition authorities and the European
Commission or through private enforcement, which relies on private
initiatives of private entities damaged by certain competition law
infringements. To illustrate, if there is a pricing cartel, it
could be prosecuted by the competent regulator (by imposing fines
capped at 10% of the annual turnover of each cartelist), but also
by its customers, distributors and any other stakeholders by suing
the cartelists for damages before national courts.
While public enforcement works well, private enforcement (with a
few notable exceptions) has been lacking in its efficiency due to
the high initial investment required to pursue such damages, lack
of court practice which would make the potential outcomes less
uncertain, difficulties in the collection of information on the
infringement, reluctance of many national courts to take on such
cases, and difficulties in quantifying damages, to name a few.
In order to facilitate further development of effective
competition law enforcement, the European Parliament has passed the
Damages Directive, which Member States should transpose into
national legislation by 27 December 2016. The main direct aim of
the Damages Directive is to streamline, standardise and lift the
common burdens that in the past have been associated with private
enforcement of competition law.
Along with a wide palette of changes that the Damages Directive
is bringing about, some examples include establishing individual
responsibility of each infringement participant for the entire harm
caused to victims, sets of detailed rules for discovery of
information and quantification of damages, a rebuttable presumption
stating that cartel infringements cause harm, special rules
regarding the statute of limitation directed towards providing an
adequate period for filing claims, as well as provisions
stimulating settlements and alternative dispute resolution.
Prospective claimants will also not have to wait for the
competition authorities to establish an infringement
(follow-on actions), but will be able to sue for
damages independently of public enforcement proceedings
Another important aspect of the Damages Directive is that it may
unlock significant commercial potential that private competition
law enforcement holds. Due to its marketwide effects, damages
claims in private enforcement cases very often include seven digit
compensation figures. Additionally, experiences from other
jurisdictions show that a predominant number of these cases ends up
in out-of-court settlements, which typically enables plaintiffs to
collect their compensation relatively early on in the
Although private enforcement has been on the rise in the last
couple of years, most practitioners agree that there is still much
commercial potential for it to develop into a standalone market and
further strengthen effective competition enforcement. Whether that
will be the case in Croatia as well will predominantly depend on
how well the Damages Directive will be incorporated into the
Croatian procedural law framework, how willing judges will be to
deal with the technicalities of what we expect to be complex and
sophisticated damages cases, and whether there will be adequate
support from the Croatian Competition Agency in discovering the
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.
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Any person who claims to be the victim of anti-competitive practices and wishes to seek compensation for the prejudice they consider to have suffered must prove before the civil courts that the three conditions of third party liability under general laws –negligence, competitive harm, and direct causal link– have been met.
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