Brexit will reshape private antitrust enforcement in Europe
The UK electorate has voted to leave the EU – a decision that has many legal implications, including for private antitrust enforcement. The English courts, which until today have been the most attractive forum for claimants of antitrust damages could be very likely replaced by other jurisdictions. The advantages of the English jurisdiction are outweighed by the uncertainty that Brexit will bring to litigation in cases brought by continental claimants.
The decisions of the European Commission that find infringements of competition law will no longer be binding on English judges. As a result, the decisions can no longer be considered as unrebuttable evidenceof infringements. This means that the defendants will be allowed to challenge the existence of the infringement ascertained by the Commission before the English courts, making the proceedings more complex and time consuming for the claimants. Furthermore, claimants that have obtained a favourable judgment in England will face increased difficulties to enforce it within the EU. Enforcement of judgements between countries in the EU is based on the Brussels Regulation recast. Once the UK ceases to be a part of the EU that Regulation no longer applies. By way of example, in Italy the judgments of English courts will be enforceable only when they become final, i.e. when all the appeals will have been expended.
These problems already have to be considered by claimants that are going start their legal proceedings today, even if the exit of UK from EU will not take place immediately, but very likely in two years. In England, complex civil proceedings like competition claims last usually more than two years. Claimants that have already filed a follow-on action of a European decision may now end up in a trial in which they will have to prove the antitrust infringement and, even if they succeed, they will struggle to enforce the judgment.
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