As a matter of principle, Egyptian law recognizes anticompetitive practices as faults that give rise to (i) tortious liability under the Egyptian Civil Code (the “ECC”) and (ii) criminal liability under the Egyptian Competition Law No. 3 of 2005 (the “ECL”).

The types of misconduct that form anticompetitive practices are:

1. Hardcore cartels, which are “per se crimes” defined by Article 6 ECL as:- arrangements or agreements between competitors, in a specific market, that may lead to:

1. increase, decrease or fix the prices of a product;
2. divide or allocate markets for specific geographic areas, distribution centers, types of clients or products, market shares, or specific periods of time;
3. coordinate in submitting to, or refraining from, tenders, bids and other calls for procurement; or
4. restrict the production, distribution or marketing of a product.

2. Vertical restraints, which are “rule of reason crimes” broadly defined by Article 7 ECL as:- arrangements or agreements between a person and his supplier or clients in a manner that shall limit competition.

3. Abuse of dominance, which is defined by Articles 4 and 8 ECL as:- actions committed by a dominant person (whose market share exceeds 25% and has the power of affecting the prices or supply of a product unilaterally without its competitors having the ability to prevent that) to achieve any of the following:

1. partially or fully stay the manufacture, production or distribution of a product for a certain period(s);
2. refrain from concluding arrangements or agreements, or ceasing to deal, with a person, regarding products, in a manner that results in restricting that person’s freedom to access or exit the market at any time;
3. limit the distribution of a product, on the basis of geographic areas, distribution centers, clients, seasons or periods of time among vertically-related persons (this is a per se crime);
4. impose a condition that, in concluding a sale or purchase arrangement or agreement of a product, requires acceptance of obligations or products that are unrelated, by their nature or by commercial customs, to the original transaction/agreement (this is a per se crime);
5. discriminate between suppliers or clients having similar commercial positions, in concluding any arrangement or agreement, whether on the grounds of pricing, types of products, or any other terms of the transaction;
6. refuse to produce or provide a product that is circumstantially scarce when its production or provision is economically possible (this is a per se crime);
7. oblige dealers to block a competitor’s access to their utilities or services, despite this being economically viable;
8. sell products below their marginal cost or average variable cost; or
9. oblige a supplier not to deal with a competitor.

4. Abusive economic concentration: which is any change in the control or material impact of a person, upon merger or acquisition, that shall limit or adversely affect competition (Articles 1(g), 19 bis(a) and (b) ECL). This mandates that economic concentrations must be approved, in advance, by the Egyptian Competition Authority (“ECA”).

To commence competition damages claim in Egypt, it is formally required to either (i) initiate civil proceedings before the competent civil court or (ii) – in ongoing criminal proceedings pushed by the ECA – file a claim for damages, whether subordinately to the criminal proceedings or in a standalone damages claim.

1. Standalone damages claims

Irrespective of criminal proceedings for a violation under the ECL, a harmed party(s) can claim damages from anticompetitive practices by initiating separate proceedings before the civil division of Egyptian Economic Courts. Pursuant to Law No. 120 of 2008, Economic Courts have exclusive subject-matter jurisdiction to hear claims initiated under the ECL.

Procedurally, harmed parties are required to follow the ordinary procedures of filing claims in tort (see below Question 14).

2. Subordinate damages claims

Where there are criminal proceedings ongoing for an ECL violation, it is possible for the harmed party(s) to file a subordinate claim for damages before the competent Public Prosecution “PP” or the criminal division of the Economic Court that is examining the ECL Violation (see Question 14).

Egyptian law entitles harmed parties to claim monetary compensation in competition damages claims. There are no specific rules governing the calculation of compensation for uncompetitive practices, thus, the general principles of the ECC apply (see Question 4).

Damages are measured by the lost profit and actual losses, as per the general provision of Article 221 ECC. In the absence of an accurate interpretation of “lost profits” and “actual losses”, Egyptian courts exercise broad discretion in assessing the elements of damage. In tortious claims, it is established by civil courts that compensation includes direct damages that are both anticipated and unanticipated. This, however, does not apply to criminal courts, where unanticipated damage is excluded (see Question 14). In practice, Egyptian courts customarily use the help of expert(s) – registered by the Egyptian Ministry of Justice – to recommend compensation.

Joint liability of juristic persons is recognized by Article 25/2 ECL. The liability is statutorily equated between the tortfeasors and juristic persons, unless otherwise decided by the court (Article 169 ECC).

Regarding leniency, Egyptian law – contrary to the explicit provision for leniency in criminal proceedings – is silent about any privileges granted to leniency applicants in damages claims.

The limitation period for torts, e.g., competition damages claims, is generally 3 years from the date of knowing about the violation or 15 years from the date of committing the violation (Article 172(1) ECC).

The above limitation, however, is statutorily suspended until the limitation period for criminal proceedings expires. This is established by Egyptian case law under Articles 172(2) and 382(1) ECC.

As the ECL violations are misdemeanors, the limitation period for initiating criminal proceedings is 3 years from the date of committing the violation. Where the violation is continuous, the limitation period starts after the last continuous act stops.

Given so, the limitation for competition damages resumes after expiry of the limitation for the criminal proceedings.

Economic Courts have exclusive subject-matter jurisdiction (see Question 2).

Economic courts have jurisdiction over competition damages claims (see Question 2).

By virtue of Law No. 120 of 2008, Economic courts must presumably apply the ECL to be competent of the competition damages claim.

In form, Economic courts shall abide by the relevant procedural code, i.e., the Civil and Commercial Procedures Code “CCP” (for standalone damages claims examined by civil division of Economic courts) and the Criminal Procedures Code “CRP” (for subordinate damages claims examined by the criminal division of Economic courts).

On the merits – absent any rules governing competition damages – Economic courts apply the general rules of the ECC (see Question 4).

The applicable standard of proof is generally subject to the Egyptian Evidence Law (“EEL”), whereby the harmed party shall establish the elements of tortious liability (fault, harm and causal link), and the tortfeasor shall negate these elements to avoid liability. Nonetheless, in the competition context, it is possible that the burden of proof shifts under the ECL as lex specialis. For instance, in the per se competition crimes, the harmed party needs only to establish the fault.

There is no statutory requirement for Economic courts to respect infringement decisions.

In practice, Economic courts tend to uphold the domestically rendered decisions of ECA. Conversely, foreign infringement decisions are likely to form mere “facts” that must be supported by admissible evidence.

For standalone damages claims, civil Economic courts are statutorily required to stay the civil private damages actions until the criminal public enforcement actions are finalized (Articles 265(1) CRP). This is because civil courts are statutorily obliged to abide by criminal findings in relation to the conviction/acquittal from the violation, the nature of such violation and the relation of the violation to the tortfeasor (Article 456 CRP).

For subordinate damages claims, criminal Economic courts examine both the criminal proceedings and the relevant damages claim simultaneously.

Egyptian law does not recognize class actions.

However, it is possible to request joinder of related proceedings – which involve the same parties and subject-matter – to be examined simultaneously in one proceeding.

No. For burden of proof, see Question 8.

Yes, expert evidence is generally recognized under Egyptian law (Article 135 EEL).

In practice, courts tend to refer disputes to an expert panel composed of 1 or 3 experts, to make fact findings in the harmed party’s claims. It is possible for parties to agree on an expert panel, however, typically, courts appoint the expert panel from those listed at the Ministry of Justice (Article 136 EEL).

The expert schedules inquisitorial sessions, in the presence of all parties, and thereafter, renders an opinion that is not binding to, but is typically upheld by, courts.

In standalone damages claims, the harmed party(s) files a written statement of claim enclosing: description of the harmed party, his legal representative and the tortfeasor (name, title, occupation and domicile), the facts, claims, and legal basis (Article 63 CCP). Written evidence – typically copies – are submitted at the registration of the case (Article 65(3) CCP). Afterwards, the clerks’ bureau schedules the first hearing and refers to the court bailiffs’ bureau to serve the defendant(s) of the case (Article 67 and 68 CCP).

During the proceedings, the harmed party(s) and tortfeasor(s) can attend, in person or by proxy (Article 72 CCP). Defenses can be orally pleaded (Article 97 CCP); however, it is typical, in civil proceedings, that parties exchange defenses in writing (i.e., defense memoranda supported by documents). Admissible evidence includes original documents issued in Arabic and officially translated original documents issued in foreign languages. Courts may resort to experts (see Question 13) or testimony, by issuing procedural orders before adjudicating the case. There is no cross-examination in Egypt; parties are statutorily required to address their questions to the court, which in turn interrogates the witnesses (Article 87 EEL).

In damages claims relating to criminal proceedings, it is important to first understand how criminal proceedings are initiated. The ECA, ex officio or upon request, initiates thorough investigation of potential anticompetitive practice. If violations are unraveled, the ECA can issue precautionary measures (e.g., suspend the violations for a temporary period to avoid irreversible damages, Article 20 ECL). However, fines can only be imposed via courts.

Where feasible, the ECA refers the case to the competent PP, which – if convinced of the accusation – raises the matter to the criminal division of Economic courts to finalize the investigation and convict/acquit the tortfeasor(s).

During the investigation by the PP or court, the harmed party can file subordinate damages claim, by either:- recording his claim in the hearing minutes (if the tortfeasor attended in person) or by serving the tortfeasor via court bailiffs (Article 251 CRP). Alternatively, the harmed party can initiate separate damages claim before the civil division of Economic courts (Article 265 CRP).

For subordinate damages claim, the criminal Economic court applies the CRP. For instance, CRP excludes “unanticipated” damage from compensation (Article 251bis). Also, oral pleadings are commonly held in criminal courts. Regarding evidence, criminal courts are typically strict about the accepted evidence and may dispense with original documentation (which is typically binding to civil courts).

For separate damages claim, the above rules for standalone cases apply.

Standalone damages claims commence by trial (see Question 14). There is no timeframe, but it is typical for civil Economic courts to finalize proceedings in 2 years. The claim could be heard, ab initio, in appellate circuits if the claim amount is EGP 15,000,000 or more, i.e., approx. USD 310,000 (Article 6 of Law No. 120 of 2008); otherwise, the claim would be heard in first instance. For the levels of appeal, it is a 3-level hierarchy: first instance, appeal and cassation.

For damages claims relating to criminal proceedings, the investigation by ECA could take up to 2 years. Thereafter, PP proceedings could take months, before reverting to courts. Trial commences before first instance circuits, with the possibility to challenge before appellate circuits and cassation (Articles 5 and 12(5) of Law No. 120 of 2008).

It is worth noting that, in competition challenges, the Cassation Court exceptionally reviews claims on the merits, if it decided to overrule the challenged decision (Article 12(5) of Law No. 120 of 2008).

No.

Please see Question 4.

Egyptian law recognizes a statutory interest of 4% for delayed payments in civil context. The interest applies as of commencing litigation proceedings unless otherwise provided (Article 226 ECC).

Please see Question 4.

None.

Egyptian law does not recognize collective settlements.

It is not prohibited to settle with parties outside the jurisdiction, however, careful legal coordination is required to ensure enforceability of the settlement.

The court process in Egypt is public, unless otherwise ordered by the court – ex officio or upon request – to maintain public order or morality or family relationships (Article 101 CCP). Typically, any document presented in court is public. Also, judgments must be issued in public (Article 174 CCP).

On the other hand, the ECL prohibits ECA from disclosing any data, except before the public prosecution or courts. Also, ECA ex-officials are prohibited, for 2 years after leaving ECA, from working with any party that was subject to investigation (Article 16 ECL).

No.

Third party funding is not regulated under Egyptian law.

Lawyers can act on success rate up to 20% (Article 82 of Advocacy Law No. 17 of 1983).

Introduced in 2005, anticompetitive practices are relatively new to the Egyptian legal system:

• There is limited case law to facilitate the understanding and control of such harmful practices.
• Demonstrating a causal link between the fault and the harms can be challenging, especially in the standalone cases not backed up by ECA investigation.
• Absent any class actions, claimants tend to file separate proceedings. This increases the workload of Economic courts, which were established to create “fast-track” litigation.

The ECA is proactive lately, and thus, we expect this to increase awareness of anticompetitive practices.

Our experience shows that, while several businesses and consumers are harmed by anti-competitive practices, they have limited awareness of their rights to redress under the ECL.

Thus, increasing awareness of ECL violations will echo before the ECA, thereby unraveling anticompetitive practices. Similarly, increasing awareness of the associated fines for ECL violations is likely to deter market power abuse.