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Damages Directive: Draft implementing Regulations

03/02/2017
Following the publication of the Government's response to the consultation on damages for breaches of competition law draft Regulations in relation to the implementation of the Damages Directive have been laid before Parliament.

Following the publication of the Government's response to the consultation on damages for breaches of competition law (for commentary on this, see our earlier blog) draft Regulations in relation to the implementation of the Damages Directive have been laid before Parliament.

The implementing Regulations have been snappily titled 'The Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017'.

The content of the draft Regulations was largely anticipated in the consultation response. The draft does not implement every Directive requirement, as some requirements are already present in national law and so reliance is placed, as far as possible, on existing legislation, case law and court rules.

As noted in our earlier blog, the Regulations distinguish between procedural provisions (those that apply to proceedings commenced after the implementing legislation is put into force and may apply to infringements or harm before that date) and those which are considered substantive (these will apply only where both the infringement and harm occurred after the implementing legislation is put into force). The draft Regulations make clear that the substantive provisions are those contained in Parts 2 (Passing On), 3 (SMEs), 4 (Cartels), 5 (Limitation and Prescriptive Periods), 8 (Exemplary Damages) and 9 (Contribution and Consensual Settlements).

No further guidance is expected to be published as the new regime will be similar to the existing one.

The Draft Regulations are currently before the House of Commons and are subject to the affirmative resolution procedure. There is no date for their coming into force but it can be expected that they will become law in early 2017, especially as the deadline for national implementation of the Damages Directive was 27 December 2016.

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