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Lord McIntosh of Haringey: I shall say another word about the relationship between the court and the competition appeal tribunal. Under the Bill, the High Court can—as it already does—award damages in competition cases. That is not in question. The point is that the competition appeal tribunal offers an alternative route—only—for cases in which infringement of competition law has already been established. That will be the expertise of those on the tribunal.

Lord Razzall: I do not want to labour the point, and I know that the Minister will consider the matter. We are supposing that, not many years hence, a raft of decisions will be taken in the UK that, currently, are taken in Brussels. Major decisions are to be devolved to the UK. We want to see powers taken in the Bill under which the correct elements of those decisions should be taken by the competition appeal tribunal, the members of which will be qualified to deal with the complicated relationship between economics, facts and the law that practitioners in the field must have. The Bill is designed to confer on the Government powers to bring forward regulations to ensure that that can take place.

Although it is a complicated issue, in a nutshell it is what the noble Lord, Lord Kingsland, and I seek with the amendment. I am grateful to the Minister for his assurance that he will take the amendment away and think about it. On that basis, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before moving on to Amendment No. 86, I should advise the Committee that if Amendment No. 87 is agreed to, I shall not be able to call Amendments Nos. 88 to 93 inclusive under the rules of pre-emption.

Clause 17 [Damages]:

Lord McIntosh of Haringey moved Amendment No. 86:



"(1) This section applies to—
(a) any claim for damages, or
(b) any other claim for a sum of money,
which a person who has suffered loss or damage as a result of the infringement of a relevant prohibition may make in civil proceedings brought in any part of the United Kingdom.

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(1A) In this section "relevant prohibition" means any of the following—"

The noble Lord said: In moving Amendment No. 86 I wish to speak also to Amendments Nos. 87, 94 and 95. Late on Tuesday evening we dealt with a number of paving amendments which in themselves were not of great significance; the significance arises in this group of amendments. Later, Amendments Nos. 103 and 108 are consequential amendments that complete the pattern.

The amendments relating to Clause 17 replace most of the current clause with a redrafted version. There is nothing substantially new in the redraft, but it provides greater legal clarity and should reduce uncertainty.

Clause 17 amends the Competition Act 1998 to allow the competition appeal tribunal to hear claims for damages in cases where a breach of competition law has been established. This covers breaches both of the prohibitions in the Competition Act itself and breaches of the prohibitions in the Articles 81 and 82 of the European Communities Treaty.

The competition appeal tribunal will have jurisdiction to hear damages claims where a breach of competition law has been found by the OFT in respect of a Chapter I or Chapter II prohibition set out in the 1998 Act, or by the European Commission or the OFT in respect of Article 81 or 82. Once the appeals process for the relevant decision has been exhausted, parties harmed by the anti-competitive action will be able to seek damages before the competition appeal tribunal.

Parties will still be able to claim damages through the courts in the usual way. However, the CAT route will offer significant advantages by virtue of more streamlined procedures and the availability of expertise in competition law and the effects of anti-competitive activity. The noble Lords, Lord Razzall and Lord Kingsland, referred to those when discussing the previous amendment.

Amendment No. 86 expresses with greater clarity the point made by existing subsection (3); namely, that the scope of a damages claim made before the tribunal is to be the same as that made before a court. It also makes it clear that the damages which may be awarded include all monetary awards which can be awarded by a court in respect of the relevant infringement. This could conceivably include claims for the restitution of profits unlawfully made by the infringing company as well as in respect of loss caused to the injured party, although the scope for these will depend on the evolving jurisprudence of the courts.

Under Amendment No. 87, subsections (5), (6), (7) and (9) are merely reworded versions of current subsections (2), (5), (4) and (6) respectively. Subsection (4) simply teases out the wording that is currently at the beginning of subsections (4) and (5). Subsection (8) clarifies that the competition appeal tribunal will be bound by decisions relating to the various prohibitions in competition law.

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Amendment No. 94 clarifies that claims can be made under this section even if the cause of action arose before the commencement of these provisions. Of course such claims can already be made in the courts.

Amendment No. 95 is merely a redrafted version of Clause 18 that provides greater legal clarity. Clause 18 amends the Competition Act 1998 to introduce the right for consumer organisations to bring claims for damages on behalf of groups of named and identified consumers. These group claims for damages can be made only before the competition appeal tribunal, not in front of the courts. As in the case of individual damages claims brought in by the CAT, a claim can be brought only where a breach of competition law has already been established. Once the full appeals process relating to the relevant decision on the breach of competition law has been exhausted, organisations will be able to bring forward the claim. However, the consumers concerned must have given their consent before any claim can be commenced.

Before bringing a group claim, organisations will have to apply to be specifically designated by the Secretary of State. If they are to be included in the list of specified bodies, applicants will have to meet published criteria. The designation of bodies will be by a statutory instrument made by the Secretary of State and subject to the negative resolution procedure.

Subsections (1) to (4) of the new version of Section 47B take the place of current subsections (1), (2), (3) and (5). The redraft clarifies the relationship between individual claims and consumer group proceedings. Subsection (5) applies certain provisions of Section 47A, inserted by Clause 17, to ensure that an infringement of competition law has to be established before a group claim can be brought, and the right to bring a group claim does not affect the right to bring a claim before the court.

Subsection (5A) is the only true new paragraph introduced by the amendment. It enables the competition appeal tribunal to order the defendant to pay any monetary remedies to the body bringing the claim forward for onward distribution to the relevant individuals, as long as all consent. But this subsection makes it clear that the damages will still be awarded to the individuals rather than to the representative body, which will be acting on their behalf in receiving the amounts due. In other words, the amendment merely provides an alternative distribution mechanism; that is, from the defendant to the consumer body and then on to the individuals. It will be necessary for both the consumer body and all the individuals concerned to give their consent before the tribunal can make the necessary order. That decision will have to be taken at the beginning of the process.

The other essential ingredient of the mechanism introduced by subsection (5A) is the ability for consumer bodies to enforce awards where an order has been made that the money should go to the body for onwards distribution. The ability to do that was introduced by government Amendments Nos. 68 and 69.

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I hope that the Committee will agree that these redrafts are clearer than the current versions. I beg to move.

On Question, amendment agreed to.

5.45 p.m.

Lord McIntosh of Haringey moved Amendment No. 87:


    Page 7, line 34, leave out from beginning to end of line 37 on page 8 and insert—


"(2) For the purpose of identifying claims which may be made in civil proceedings, any limitation rules that would apply in such proceedings are to be disregarded.
(3) A claim to which this section applies may (subject to the provisions of this Act and Tribunal rules) be made in proceedings brought before the Tribunal.
(4) But no claim may be made in such proceedings—
(a) until a decision mentioned in subsection (5) has established that the relevant prohibition in question has been infringed; and
(b) otherwise than with the permission of the Tribunal, during any period specified in subsection (6) or (7) which relates to that decision.
(5) The decisions which may be relied on for the purposes of proceedings under this section are—
(a) a decision of the OFT that the Chapter I prohibition or the Chapter II prohibition has been infringed;
(b) a decision of the OFT that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;
(c) a decision of the Tribunal on an appeal from a decision of the OFT that the Chapter I prohibition, the Chapter II prohibition or the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;
(d) a decision of the European Commission that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed; or
(e) a decision of the European Commission that the prohibition in Article 65(1) of the Treaty establishing the European Coal and Steel Community has been infringed, or a finding made by the European Commission under Article 66(7) of that Treaty.
(6) The periods during which proceedings in respect of a claim made in reliance on a decision mentioned in subsection (5)(a), (b) or (c) may not be brought without permission are—
(a) in the case of a decision of the OFT, the period during which an appeal may be made to the Tribunal under section 46, section 47 or the EC Competition Law (Articles 84 and 85) Enforcement Regulations 2001 (S.I. 2001/2916);
(b) in the case of a decision of the OFT which is the subject of an appeal mentioned in paragraph (a), the period following the decision of the Tribunal on the appeal during which a further appeal may be made under section 49 or under those Regulations;
(c) in the case of a decision of the Tribunal mentioned in subsection (5)(c), the period during which a further appeal may be made under section 49 or under those Regulations;
(d) in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the House of Lords from a decision on the further appeal;
and, where any appeal mentioned in paragraph (a), (b), (c) or (d) is made, the period specified in that paragraph includes the period before the appeal is determined.

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(7) The periods during which proceedings in respect of a claim made in reliance on a decision or finding of the European Commission may not be brought without permission are—
(a) the period during which proceedings against the decision or finding may be instituted in the European Court; and
(b) if any such proceedings are instituted, the period before those proceedings are determined.
(8) In determining a claim to which this section applies the Tribunal is bound by any decision mentioned in subsection (5) which establishes that the prohibition in question has been infringed.
(9) The right to make a claim to which this section applies in proceedings before the Tribunal does not affect the right to bring any other proceedings in respect of the claim.""

On Question, amendment agreed to.

[Amendments Nos. 88 to 93 not moved.]


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