Amendments to the Prevention of Restriction of Competition Act
PRCA-1, which shall enter into force on 20 May 2017, now allows persons who have incurred losses due to an infringement of competition laws to request the disclosure of evidence or information from the infringing party or a third party in possession of such evidence or data, where needed to substantiate a claim for damages filed with a court. The disclosure of evidence or data may only be requested where: (i) it has been shown that grounds for the claim arise from a competition law infringement(s), (ii) the evidence or data requested is necessary to demonstrate the existence of a claim or the amount sought under the claim, and (iii) the evidence or data, the disclosure of which has been requested, are stated in as much detail as possible based on the facts and evidence available to the person requesting the disclosure thereof under reasonable conditions.
The injured party has the option to claim damages from the infringing party before the court taking into consideration. The damages can be set with discretion or as property damage according to the price difference in the supply chain, which is the difference between the actual price paid and the price that would apply if there had been no infringement of competition law. The amount of compensation for property damages cannot exceed the amount of the price difference that was transferred to that stage of the supply chain. Notwithstanding the full or partial transfer of the difference in price to the next stage of the supply chain, the injured party is entitled to compensation for loss of profit when the total or partial transfer of the difference in price to the next stage of the supply chain results in lower sales and lower purchases.
One of the changes brought in under the amendments is the presumption that cartels cause damage, unless the offender proves otherwise. Under certain conditions, a cartel member may be given immunity from fines if the cartel member discloses its participation in the alleged cartel, is the first to furnish evidence to a cartel investigation, cooperates with the competent authorities, steps out of the cartel once cooperation with the competent authorities has been established and if the cartel member in question did not coerce others to get involved in the alleged cartel. Under certain conditions, the fine may also be reduced.
The amended PRCA-1 aims to strengthen the protection of competition policy, to discourage companies from engaging in illicit cartels and abuses of dominant positions, and also extends the statute of limitations for actions for damages.
