No. 3 / 2013 - AmCham

News&Viewssuspended during the proceedings before the competition authority.However, even if there is enough time, it is impossible to prepare acase without sufficient evidence, and it is very demanding for claimantsto obtain the necessary data and information on competitioninfringements. The proposal is to oblige national courts to order disclosure,with certain limits and additional requirements. Furthermore,in many member states decisions by administrative bodies, includingcompetition authorities, are not mandatory for civil courts, meaningthat the claimants would potentially need to prove, again and on theirown, that the infringement existed. This is why the proposal is to makecourts bound by a final decision finding an infringement (made bya competition authority or review court, as the case may be). Twoother proposals significantly facilitating the position of claimants areto adopt a rebuttable presumption that the infringement caused harm,and to make all infringers jointly and severally liable. As for the typeof damages awarded, the Directive proposal is aiming at securing fullcompensation to the injured party, therefore also including lost profits.However, unlike in the US (which, due to the vast antitrust experience,still serves as a role model in this legal area), where private enforcementis also a punitive mechanism, the proposed model remainscloser to the European continental standards, leaving punishmentand, to a larger extent, deterrence to the competition authorities. Inorder not to allow for unjustified enrichment of claimants, the DirectiveIn parallel with the Directive proposal, the Commission hasadopted a recommendation encouraging introduction of collectiveredress mechanisms in cases of violations of EU law in general, includingcompetition rules. The recommendation goes hand-in-handwith the Directive proposal, but unlike the future Directive, it will notbecome mandatory for the EU member states. However, given thepractice of the European Commission on many different topics (suchas the one at hand) to start with non-binding documents, which leadto directives or even regulations, this might be just the first step inpromoting collective redress in the EU. The recommendation shouldbe interesting also to the Croatian lawmakers, since collective redresshas already been introduced into our legal system, but so far hasbeen used in a very modest number of cases.Since the first Croatian Competition Act in 1995, Croatia hascome a long way in understanding the concept of competition, developingthe competences of the competition agency and makingentrepreneurs aware of their obligations and liabilities when actingon the market. The Directive proposal announces an exciting new erain competition law development, not only in the EU in general, butalso specifically in Croatia. If and when adopted, the Directive shouldencourage currently non-existing competition litigation, resulting in avery challenging task for the judicial system, as competition cases willrequire well trained judges, possibly specialized in hearing only thosereporton Litigation in the EUproposal allows for passing-on defense. Finally, the proposal tries toencourage consensual dispute resolution, which in many cases maybe the best solution for all parties.cases. Simultaneously, ever-increasing consumer protection activitiesshould reach a new level, and become a valuable tool for protectingnot only consumers, but fair market competition in general.3/2013 ISSUE 13