Law 113(I)/2017, the Actions for Damages for Infringements of Competition Law of 2017, which was published in the government gazette on 21 July 2017, transposes Directive 2014/104/EU into Cyprus law.
The new law provides for rules to ensure that any physical or legal person or public authority who has suffered damage as a result of infringement of the competition law by an undertaking or association of undertakings can effectively claim compensation against those undertakings. It establishes rules concerning the disclosure of evidence, whether this is in the possession of the parties or any third parties or included in the file of the national competition authority. There are limits on the use of evidence obtained solely through access to the file of a competition authority relating to leniency statements and settlement submissions.
The courts are given the power to impose a fine of up to EUR 250,000, imprisonment for up to six months or both on the parties, any third parties or their legal representatives for a range of misdemeanours including:
- failure or refusal to comply with a disclosure order of the court;
- destruction of relevant evidence;
- failure or refusal to comply with the obligations imposed by an order of the Court protecting confidential information; and
- infringement of the limits on the use of evidence.
In addition, the new lays down rules on the liability of undertakings or associations of undertakings which have infringed competition law in relation to the damage suffered. It also gives an “indirect purchaser” the right to claim compensation against an infringer of the competition law. An “indirect purchaser” is anyone who indirectly (for example via an intermediary) acquired products or services that were the object of an infringement of competition law, or products or services containing them or deriving from them, rather than acquiring them directly from the infringer.
The law provides that compensation for damage can be claimed irrespective of whether the claimant is a direct or indirect purchaser from an infringer. Compensation is limited to the damage caused by the infringement. In order to avoid claims for excessive compensation, defendants in an action for damages for infringement of competition law may raise a defence that they have passed on the overcharge resulting from the infringement, either wholly or in part. This means that the amount of compensation to be awarded depends on whether or to what degree an overcharge was passed on the claimant, taking into account the commercial practice that price increases are passed on down the supply chain.
The limitation period for actions under the new law is six years. The limitation period may be suspended while the competition authority takes action for the purpose of investigation. Final decisions of the national competition authority or of the administrative court are deemed to be an irrefutable presumption in proceedings under the law, while a final decision of a foreign member state is prima facieevidence of infringement of competition law, which may be assessed on a case-by-case basis in the light of any other evidence produced by the parties.
For further information on the new law, please contact Ramona Livera or your usual contact at Elias Neocleous & Co LLC.