The Ministry for Economic Development and Technology has
recently published a legislative proposal for an amendment of the
Competition Act (Zakon o preprečevanju omejevanja konkurence,
ZPOmK-1) to implement the 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
The amendment provides for a number of new substantive and
procedural rules aimed at facilitating actions for damages brought
by injured parties against undertakings that have infringed EU or
Slovenian competition law. The most important changes are briefly
Joint and several liability
The amendment proposes that undertakings which have infringed
competition law through joint behaviour, e.g. members of a cartel,
are jointly and severally liable, meaning that the injured party
will have the right to request compensation from each of those
undertakings until it has been fully compensated. Certain
limitations of the principle of joint liability will apply to SMEs
and to undertakings which have been granted immunity from fines by
a competition authority under a leniency programme.
Quantification of harm
The draft amendment also provides for rules governing the
quantification of harm resulting from an infringement of
competition law. In particular, it will be presumed that certain
serious infringements (cartels) have caused harm. The infringer
will have the right to rebut this presumption (in comparison, under
general liability for damage rules the claimant needs to prove that
an infringement has caused harm). The courts will also have the
power to determine the amount of harm if it is established that a
claimant suffered harm but the exact amount of harm cannot be
The proposed amendment introduces rules on the passing-on of
overcharges to ensure that anyone who has suffered harm as a result
of a competition law infringement is able to claim compensation. In
particular, both direct and indirect purchasers will be able to
claim and obtain compensation. On the other hand, the infringer can
invoke a passingon defence against the claimant, i.e. it can invoke
as a defence the fact that the claimant passed on the whole or part
of the overcharge resulting from the breach of competition law.
To avoid that various actions for damages by claimants from
different levels in the supply chain (for which different courts
may be competent) lead to a multiple liability or to an absence of
liability of the infringer, the courts will be able to take account
of actions for damages related to the same infringement of
competition law but brought by injured parties from other levels in
the supply chain, final judgements resulting from such actions for
damages, and publicly available information relating to such
Disclosure of evidence
According to the new rules, both the claimant and the defendant
will be able to request that the court orders the other party or a
third party to disclose the relevant evidence which lies in their
control, subject to certain conditions aimed at preventing
uncontrolled fishing expeditions. The courts will also have the
power to order a competition authority (including the European
Commission) to disclose the evidence included in its file if the
party requesting the disclosure cannot obtain the evidence from the
other party or a third party.
In order to protect confidential information contained in the
evidence disclosed, the court shall adopt a decision on protective
measures limiting access to the evidence to certain persons who are
prohibited from disclosing confidential information to any other
person. Any breach of protective measures by persons having access
to confidential information is punishable by a fine of up to EUR
The relative limitation period is proposed to be 5 years from
when the infringement of competition law ceased and the claimant
became aware (or was reasonably expected to become aware) of i) the
conduct of the infringer and that such conduct is an infringement
of the competition law, and ii) the fact that the infringement of
the competition resulted in harm to the claimant, and iii) the
identity of the infringer. The draft amendment also specifies
instances which affect the running of limitation period.
The absolute limitation period is currently still under
The legislative proposal is currently in the first phase at the
Ministry for Economic Development and Technology and we expect that
the proposal will be submitted to the Parliament for adoption in
the following months.
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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