Antitrust and Competition Alert
The Consumer Rights Act 2015 (“CRA”) comes into force today, 1 October 2015.1 It introduces major reforms to the antitrust damages actions regime in the UK.2 In particular, the CRA broadens the type of cases that can be heard by the UK’s specialist antitrust court, the Competition Appeal Tribunal (the “CAT”), to include opt-out class actions, and makes other procedural amendments aimed at facilitating and streamlining private damages actions in the UK.
The previous rules gave rights to individuals to bring private damages actions, and allowed a narrow group of specified consumer organisations to bring opt-in class actions in the CAT. Under the old regime, damages claims before the CAT could only be brought on the basis of a prior public competition enforcement decision (known as “follow-on” actions), although actions for damages caused by alleged breaches of UK or EU competition law could also be brought in the High Court without a prior decision (known as “stand-alone” actions). The Competition Act 1998 (“CA98”) also contained a framework for opt-in collective proceedings: the consent of each of the individuals concerned was required to bring or continue a claim on their behalf, and all the individuals’ claims had to relate to the same infringement.
In the foreword to the report announcing the reforms that would be incorporated into the CRA, the Secretary of State for Business, Innovation and Skills anticipated that the reforms would “dramatically increase the ability of business and consumers to hold to account those who have breached competition law. Their implementation will significantly enhance the benefits of the competition regime to our economy, driving improvements for both business and consumers”.3
The CRA extends the jurisdiction of the CAT to hear both stand-alone and follow-on actions, and introduces a new collective proceedings regime covering both opt-in and opt-out class actions.
It also extends the relief available to claimants in the CAT to include interim injunctions as well as damages. Previously, the CAT had no powers to impose injunctions. Under the new regime, its powers are equivalent to those of the High Court. The principles applied by the CAT in deciding whether to grant an injunction will be the same as in the High Court, save that applicants for interim injunctions in claims allocated to the “fast track” procedure (see below) will either not be required to give cross-undertakings as to damages (to compensate the respondent in the event that the injunction is not ultimately granted at trial), or will only be required to give capped undertakings.
In line with the CAT’s extended jurisdiction and the intention of the reforms to improve access to redress to individuals and SMEs, a new “fast track” procedure has been introduced. The CAT may, at any time, either on its own initiative or on the application of a party, make an order that particular proceedings be subject to the fast track procedure, pursuant to which the main substantive hearing must be fixed to commence as soon as practicable, and in any event within six months of the order allocating the proceedings to the fast track. Furthermore, the amount of recoverable costs is capped at a level to be determined by the CAT.
The most significant change brought about by the CRA is the extension of collective actions to include wrongly opt-ins but also opt-out class actions. Opt-in actions are brought on behalf of each class member who opts in by notifying the representative that its claim should be included in the collective proceedings; opt-out collective proceedings are those brought on behalf of each class member except any class member who opts out by notifying the representative that its claim should not be included in the collective proceedings. The CRA also excludes from the opt-out procedure any class member who is not domiciled in the UK at a specified time– such claimants would need to opt-in to the claim instead.
Collective proceedings may be brought before the CAT, and can combine two or more claims which can be brought under the amended CA98 (i.e. stand-alone or follow-on actions). Under the new regime, the CAT can make an award of damages in collective proceedings without undertaking an assessment of the amount of damages recoverable by each represented person (i.e. it can group all of the claims together), although it is not permitted to award exemplary damages.
In collective proceedings, the CAT is now empowered to make a collective settlement order approving a proposed settlement between parties. Such an order is binding on all persons in the proceedings who are based in the UK and did not opt-out, or, if domiciled outside the UK, opted in.
The CRA also grants the CAT the power, on application, to approve a voluntary redress scheme, which is an additional form of alternative dispute resolution in private actions for infringements of competition law. Undertakings that have been the subject of an antitrust infringement decision can use voluntary redress schemes to offer compensation to parties affected by the infringement.
Previously, claims in the CAT could be brought up to two years after the later of the date of expiry of the defendant’s right to appeal the underlying infringement decision, or the date on which the cause of action accrued. Under the new regime, the time limit for claims to be brought before the CAT is amended to match the relevant limitation period for claims before the High Court, which is six years from the time the damage occurred, subject to deliberate concealment. Transitional rules apply.
Further changes to the antitrust damages actions regime in the UK will result from the requirement to implement the EU Damages Directive4 (the “Directive”) by 27 December 2016. The Directive will bring about further refinements: for example, the requirement that an infringement decision of a national competition authority in any EU Member State will constitute at least prima facie evidence of infringement before the courts of other EU Member States, and the establishment of a rebuttable presumption that cartels cause harm.5
1Consumer Rights Act 2015 (Commencement No. 3, Transitional Provisions, Savings and Consequential Amendments) Order 2015 (S.I. 2015/1630).
2Competition Act 1998 and the Enterprise Act 2002.
3Department for Business, Innovation & Skills “Private actions in competition law: A consultation on options for reform – government response”, January 2013.
4Directive 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 European Union Text with EEA relevance, OJ L 349, 5.12.2014, p. 1–19.
5See summary of main changes at: http://ec.europa.eu/competition/antitrust/actionsdamages/directive_en.html