Competition Litigation in Egypt

user Youssry Saleh & Partners calender 18 Jan 2024 views 326 Views
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The Egyptian government is attempting to enhance market security and the best worldwide commercial practices, as this will aim to attract national and foreign investors, and the political establishment realized that free-market competition is critical and is the key to this strategy.

Further, Competition promotes innovation and production efficiency while also promoting consumer welfare through inter-firm rivalry.

Nevertheless, since intense competition could result in anti-competitive behavior, the competition authority should play an important role in ensuring that economic activities are carried out properly and that free and fair competition in the marketplace is protected.

Accordingly, the Egyptian Competition Law No.3 of the Year 2005  “ECL” was established and it’s Executive Regulation No.1316 of the Year 2005.

In accordance to the Law, Control over a relevant market as per Article No.4 is the ability of a person whose share exceeds (25%) of that market to have an effective impact on prices or the volume of supply in it without his competitors having the ability to impose limitations.

Meanwhile, the main authority that regulates the competition in Egypt is The Egyptian Competition Authority “ECA”, the ECA plays a fundamental role in maintaining the fair competition system for the Egyptian market and ensures safety and protection of companies from the harms of competition.

As per Article No.11 of the Egyptian Competition Law No.3 of the Year 2005, The Egyptian Competition Authority “ECA” is responsible in particular, for the following:

  • Receive requests to take procedures for investigation, research, and gathering evidence, and ordering these procedures to be taken in cases of agreements and practices harmful to competition
  • Prepare an integrated database and information on economic activity and update and develop it on a permanent basis to serve the work of the agency in all areas related to the protection of competition.
  • Express an opinion on legislation, policies or decisions that would harm competition.
  • Coordinate with counterpart agencies in other countries regarding matters of common interest.
  • Organize training and educational programs with the aim of raising awareness of the provisions of this law and the principles of the free market in general.
  • Issue a periodic bulletin that includes the decisions, recommendations, procedures and measures taken by the agency and other matters related to its affairs.
  • Prepare an annual report on the agency’s activities, future plan, and proposals to be presented to the competent minister.
  • Coordinate with sectorial agencies on matters of common interest, without prejudice to the authority’s powers.

Regarding the Claims that may be raised due to the Competition Law and according to the established principles of the Egyptian Civil Law No. 131 of the Year 1948 in Article No. 163, any person who committed a fault is liable to compensate it.

In accordance with Egyptian law, a victim of a criminal act has the following options:

  • Raising a civil lawsuit before the criminal court to be considered alongside the criminal case; or
  • Bringing a separate civil action in the civil court to seek damages.

Accordingly, private enforcement can take the form of a private claim based on tort for damages before the economic civil court, which is the competent court, and it is possible to file civil claims as stand-alone or follow-on litigation.

However, according to Article No.21 of the “ECA”, it is not permissible to initiate a criminal case or take procedures in it regarding acts violating the provisions of this law except by a written request from the Chairman of the Agency’s Board of Directors based on the approval of the majority of its members. This limits the ability to bring civil actions before criminal courts.”

If an individual chooses to pursue private enforcement through a civil claim, he must submit a statement of case to the competent court, which will then notify the other party. On the other hand, if an individual chooses the criminal route, he must file a complaint with the ECA using an official form.

After investigating and discovering a violation, the ECA’s chairman may request that the public prosecutor initiate legal action in a criminal court. Regardless of the chosen route, the claimant must provide evidence of the harm sustained and the specific provisions of the Competition Law that have been violated.

According to the first paragraph of Article No. 265 of the Criminal Procedural Law No. 150 of the Year 1950, a civil action must be suspended until the criminal action is decided.

If an individual chooses to file only civil damages claim, the applicable limitation period is three years from the date they became aware of the infringement or 15 years from the date the infringement was committed, as outlined in the first paragraph of Article 172 of the aforementioned Civil Code. Nevertheless, since infringements of the Egyptian Competition Law are also criminal offenses, the limitation period for civil claims before civil courts will not begin until the limitation period for criminal cases has passed. The limitation period for criminal cases is typically three years from the date of committing the crime. The limitation period for follow-on actions is related to the enforceability of final judgments issued by criminal courts. If the Egyptian Competition Authority initiates a criminal action for a particular anti-competitive conduct, injured parties may have the right to intervene in the case. Yet, if the ECA waits for a final judgment instead of initiating an action, the limitation period will be three years from the date of issuance of this final judgment.

In case of filing civil actions only, the plaintiff can make an appeal to the Economic Civil Court of Appeal based on either a point of fact or law. The Economic Court of Appeal has full power to review any points underpinning the appeal and has the choice to alter the first instance decision in whole or in part. Additionally, the plaintiff has the option to make a final appeal to the Court of Cassation on points of law only.

In regard to a stand-alone civil action, an individual must bear all burdens to prove fault, harm, and causal link because decisions made by Egypt’s competition authority (ECA) do not have a binding effect on civil courts. While expert opinions made by ECA are not binding to civil courts either, judges are free to disregard them and rely on other evidence presented in court.

Consequently, decisions made by the Egyptian Competition Authority (ECA) have embodied a new economic strategy that aims to avoid monopolistic positions and facilitate easy market entry to promote economic development and support for small businesses. The ECA’s enforcement of this strategy involves scrutinizing entire supply chains as it works to ensure equal opportunities for competition in all economic sectors. However, this mandate should be executed in a way that is sensitive to business considerations to prevent over-enforcement that could hinder market growth. This approach is essential to maintaining a level playing field for competitors and fostering a climate that supports economic development.