Towards a More Effective Action for Damages for breach of Competition Law
A specific action for damages arising from a breach of competition law has been available under the Competition Act since 2011. A victim of anti-competitive conduct has been entitled to damages for actual loss and for loss of profit, as a result of a breach of competition law, since May 2011 to be exact.
Last Monday, Parliament approved further amendments to the Competition Act, to facilitate the recovery of compensation for persons suffering such damages. This is also in line with Malta’s obligation to transpose 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 European Union, otherwise known, as the ‘Directive on Antitrust Damages Actions’. These amendments, therefore, or, indeed one of the underlying rationale behind this Directive is to augment the interplay between the public enforcement carried out by our national competition authority, the Office for Competition, and the private enforcement that takes place in the courtrooms.
A victim of a breach of competition law may thus seek a solution before the Office for Competition and/or sue for damages before the civil court. In the latter case, to prove actions for damages in competition law, parties can now rely on specific rules, such as, the disclosure of categories of evidence; the possibility to use a final infringement decision of the Office for Competition or of the European Commission as full proof before the courts; a rebuttable presumption that cartels cause harm; and an increased prescriptive period of 5 years.
Insurance, Car Repairs and Interim Measures
Last month, the Office for Competition issued a preliminary decision on the basis of Article 15 of the Competition Act, which allows the Director General to “hold the ring” on what he considers prima facie anti-competitive conduct which may cause irreparable harm.
According to the Office for Competition, four insurance companies entered into a so-called “horizontal” anti-competitive agreement with a view to restricting competition in the repair of vehicles market. In essence, the Office for Competition considered that the operation, by the insurers, of a Qualified Vehicle Repair (QVR) Scheme in relation to which, insured clients could only use repairers certified under this scheme, in lieu of their non-QVR repairer of choice, restricted competition on this market.
By virtue of this interim decision, the Office has ordered the insurers to notify policy holders and publish on their websites that no distinction shall be made between claimants who choose a QVR repairer and a non-QVR repairer.
This decision is to remain in effect for six months as from the 18th September 2017. A non- confidential version of this decision may be found on the Office’s website at: http://mccaa.org.mt/en/office-for-competition