CARTELS ARE PART OF THE STORY
compensation when there has been harm suffered, but it is equally important for there not to be double liability on a party to a cartel.
There has not been a formal civil damages award pursuant to the Competition Tribunal finding a firm guilty of cartel conduct in SA.
There are several difficulties that a party wishing to claim civil damages as a result of cartel behaviour, for example price fixing or bid rigging, could face.
These difficulties relate to the difficulty victims experience to draw a sufficiently close link to the harm suffered and the anticompetitive conduct; the difficulty victims experience to obtain evidence required to support their claim; the difficulty of quantifying cartel behaviour; and the lack of funds or mechanisms available to consumers and small-medium enter- prises in seeking redress.
To make it easier for alleged victims of anticompetitive conduct to claim civil damages, the European Union (EU) recently announced certain reforms in competition law.
The reforms bring about considerable changes to compensation for victims of collusion.
The reforms include collective redress mechanisms aimed at enabling individual victims of collusion to claim collectively to circumvent the usual risks, costs and delays that are involved in civil litigation.
In this regard, the two redress mechanisms provided for are the representative action, and the opt-in collective action where individual victims of anticompetitive behaviour could decide to combine their claims together into one action.
Disclosure of evidence is a major issue most victims of collusion struggle with when considering claims for damages. This could be seen as the reason why the EU reforms provide for an obligation on defendants to disclose hard-to-find evidence which includes giving victims of cartels more time in preparing their case.
A further reform relates to quantification of harm, which relieves victims of the previously heavy evidentiary burden, as it places a rebuttable presumption in favour of the victim that harm has occurred.
Indeed the EU reforms lowered the hurdle in relation to parties wanting to claim damages and it needs to be seen whether these reforms would increase the number of civil damages claims as well as class actions that follow investigations and successful prosecutions for cartel behaviour in the EU.
Disclosure of evidence is a major issue most victims of collusion struggle with when considering claims for damages