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Antitrust

Actions for Damages > Directive on Antitrust Damages Actions

Overview Damages directive Disclosure of Evidence Collective redress Quantification of harm

Directive on Antitrust Damages Actions

Directive 2014/104/EU on antitrust damages actions was signed into law on 26 November 2014 and published in the Official Journal of the European Union on 5 December 2014.

Transposition of the Directive in Member States

The deadline for transposing the Directive on Antitrust Damages Actions into Member States' legal systems expired on 27 December 2016.

So far, 10 Member States have communicated to the Commission that they have fully transposed the Directive: Denmark, Finland, Hungary, Ireland, Italy, Lithuania, Luxembourg, the Netherlands, Slovakia and Sweden (last updated on 20 February 2017).

Many Member States are in the final stages of their national legislative process to adopt measures transposing the Directive. The Commission expects that the majority of Member States will complete the transposition of the Directive in the coming weeks and months.

The Commission continues to monitor the transposition state-of-play closely and takes all necessary steps to ensure that the new rules are in place across the EU as soon as possible. Letters of formal notice were sent on 24 January 2017 to all Member States which failed to communicate full transposition by 18 January 2017.

With regard to communicated transposition measures, the Commission starts examining whether they transpose the Directive completely and correctly.

The following information (adopted legislation, draft legislation, consultation documents, etc.) is publicly available at national level:

Country Stakeholder consultation Government Parliament Adopted legislation Full transposition
communicated
Austria     Ministry Proposal of 26 August 2016

Government Proposal of 1 March 2017
 
Belgium November 2015 - May 2016 Proposal of 17 June 2016 Proposal of 12 April 2017  
Bulgaria 02 - 16 September 2016   Proposal of 15 November 2016  
Croatia 09 November – 08 December 2016

 

Proposal of 8 March 2017  
Czech Republic  

Proposal of 18 August 2016

Proposal of 5 December 2016
Parliament file
 
Cyprus        
Denmark

29 June – 03 August 2016 (2nd consultation)

06 October – 13 November 2015 (1st consultation)
  Proposal of 5 October 2016

Competition Damages Act

Explanatory notes

Parliament amendments

Estonia 11 August - 1 September 2016      
Finland 15 June – 11 September 2015   Proposal of 19 May 2016 Act on Competition Damages (1077/2016)
Amendment to Competition Act 1078/2016)
Entry into force: 26.12.2016
More info
France       Decree of 9 March 2017 (n°2017-305)
Ordonnance of 9 March 2017 (n°2017-303)
Germany 01 - 15 July 2016   Proposal of 28 September 2016
Parliament file
Greece        
Hungary 13 - 22 September 2016   Proposal of 28 October 2016 Amendment to the Competition Act (see pages 183 and seq.)
Ireland       EU (Actions for Damages) Regulations 2017
Italy   Proposal of 27 October 2016 Legislative Decree of 19 January 2017, n. 3
Latvia 07 - 21 January 2016     Partial implementation (concerning Article 17 (2) of the Directive)
Lithuania 10 February - 02 March 2016 Proposal of 21 October 2016 Proposal of 22 November
Proposal of 15 December
Amended Competition Act
Luxembourg Proposal of 5 July 2016 Competition Damages Act
Malta 20 September - 18 October 2016      
Netherlands 08 October - 22 November 2015   Proposal of 7 June 2016
Proposal of 24 November 2016
Law amending the Book 6 of the Civil Code and the Code of Civil Procedure in relation to the implementation of the Directive 2014/104/EU
Entry into force: 10.02.2017
Poland 17 March - 07 April 2016 Proposal of 1 February 2017
Proposal Progress File
Proposal for Damages Actions Act  
Portugal 26 April - 27 May 2016 Proposal by the NCA: PT ; EN
   
Romania 04 - 15 September 2016
Slovakia 08 - 26 August 2016 Discussion of revised draft Proposal of 23 September 2016

Competition Damages Act

Slovenia 15 June - 15 July 2016 Proposal of 13 February 2017 (adopted on 2 March 2017) Proposal of 3 March 2017
More info
 
Spain First draft      
Sweden 06 November 2015 - 05 February 2016   Proposal of 15 September 2016

Competition Damages act

Amendment to the Competition Act

Amendment to the Group Actions Act

Amendment to the Patent and Market Court Act
United Kingdom 28 January - 09 March 2016 Government response of 20 December 2016 to public consultation Draft Statutory Instruments Gibraltar: Fair Trading (damages for infringement of competition) Rules 2016

UK: The Claims in respect of Loss or Damage arising from Competition Infringements Regulations 2017

Transposition of the Directive in the EEA EFTA States

As the Directive on Antitrust Damages Actions is EEA-relevant, it needs to be transposed in the EEA EFTA States (Iceland, Liechtenstein and Norway) as well. The Directive needs to be implemented into the EEA Agreement before the EEA EFTA States can adopt the relevant national measures (e.g. Norway carried out a public consultation on draft transposition measures in early 2016).

Main changes brought by the Directive

The Directive removes practical obstacles to compensation for all victims of infringements of EU antitrust law. The Directive applies to all damages actions, whether individual or collective, which are available in the Member States.

Further, the Directive fine-tunes the interplay between private damages actions and public enforcement of the EU antitrust rules by the Commission and national competition authorities.

Main changes:

  • Parties will have easier access to evidence they need in actions for damages in the antitrust field. In particular, if a party needs documents that are in the hands of other parties or third parties to prove a claim or a defence, it may obtain a court order for the disclosure of those documents. Disclosure of categories of evidence, described as precisely and narrowly as possible, will also be possible. The judge will have to ensure that disclosure orders are proportionate and that confidential information is duly protected.
  • Similarly as a Commission infringement decision, a final infringement decision of a national competition authority will constitute full proof before civil courts in the same Member State that the infringement occurred. Before courts of other Member States, it will constitute at least prima facie evidence of the infringement.
  • Clear limitation period rules are established so that victims have sufficient time to bring an action. In particular, victims will have at least 5 years to bring damages claims, starting from the moment when they had the possibility to discover that they suffered harm from an infringement. This period will be suspended or interrupted if a competition authority starts infringement proceedings, so that victims can decide to wait until the public proceedings are over. Once a competition authority's infringement decision becomes final, victims will have at least 1 year to bring damages actions.
  • The Directive clarifies the legal consequences of 'passing on'. Direct customers of an infringer sometimes offset the increased price they paid by raising the prices they charge to their own customers (indirect customers). When this occurs, the infringer can reduce compensation to direct customers by the amount they passed on to indirect customers. Compensation for that amount is in fact owed to indirect customers, who in the end suffered from the price increase. However, since it is difficult for indirect customers to prove that they suffered this pass-on, the Directive facilitates their claims by establishing a rebuttable presumption that they suffered some level of overcharge harm, to be estimated by the judge. The Directive contains provisions to avoid that claims by both direct and indirect purchasers lead to overcompensation. Claims concerning harm resulting from loss of profit are not affected by the Directive's passing-on rules.
  • The Directive clarifies that victims are entitled to full compensation for the harm suffered, which covers compensation for actual loss and for loss of profit, plus payment of interest from the time the harm occurred until compensation is paid.
  • The Directive establishes a rebuttable presumption that cartels cause harm. This will facilitate compensation, given that victims often have difficulty in proving the harm they have suffered. The presumption is based on the finding that more than 90% of cartels cause a price increase (as found by a study). In the very rare cases where a cartel does not cause price increases, infringers can still prove that their cartel did not cause harm.
  • Any participant in an infringement will be responsible towards the victims for the whole harm caused by the infringement (joint and several liability), with the possibility of obtaining a contribution from other infringers for their share of responsibility. However, to safeguard the effectiveness of leniency programmes, this will not apply to infringers which obtained immunity from fines in return for their voluntary cooperation with a competition authority during an investigation; these immunity recipients will normally be obliged to compensate only their (direct and indirect) customers. Furthermore, a narrow exception from joint and several liability is foreseen under restrictive conditions for SMEs that would go bankrupt as a consequence of the normal rules on joint and several liability.

Ordinary legislative procedure

Based on a Commission proposal of 11 June 2013 (see below), the Directive was adopted by the European Parliament and the Council of the European Union under the ordinary legislative procedure (Article 294 TFEU).

Legislative milestones:

  • On 2 December 2013 the Council adopted its general approach on the Commission's proposal, which gives the Council Presidency the mandate to start negotiations with the European Parliament and the European Commission with a view of reaching an agreement in the first reading.
  • On 27 January 2014, the ECON Committee of the European Parliament adopted its Report on the Proposal and provided the Rapporteur with a mandate to start trilogue negotiations with the Council and the Commission in view of reaching an agreement in first reading.
  • In February and March 2014, three political trilogues and several technical meetings took place in order to reach an agreement on the text. This agreement was reached on 20 March 2014.
  • On 26 March 2014, COREPER endorsed the agreed result of the trilogues.
  • On 17 April 2014, the Parliament approved the compromise text of the Directive. See Commission press release and memo.
  • Following linguistic corrections, the Directive was finally adopted by the Council on 10 November 2014. See Commission press release.
  • The Directive was formally signed into law on 26 November 2014 and published in the Official Journal of the EU on 5 December 2014.

Commission proposal

The Directive is based on the Commission proposal for a Directive on antitrust damages actions for breaches of EU competition law, which was adopted on 11 June 2013.

Speeches and articles

Preparatory work: White Paper

The proposal for a Directive follows up on a White Paper adopted on 2 April 2008. The White Paper suggested specific policy measures so that all victims of EU antitrust infringements could effectively access redress mechanisms in order to be fully compensated for the harm they had suffered.

1) Documents
2) Comments received
  • The European Parliament adopted a resolution on 26 March 2009 and the European Economic and Social Committee an opinion pdf on 25 March 2009.
  • The European Consumer Consultative Group (ECCG) adopted an opinion pdf on 23 November 2010.
  • See also the contributions received during the public consultation

Green Paper

The White Paper was preceded by a Green Paper which was published in 2005. This had identified the main obstacles to a more efficient system for bringing damages claims for infringement of EU antitrust law, and had already proposed measures encouraging the right to compensation by victims of infringements of the EU antitrust rules.

1) Documents
2) Comments received
  • The European Parliament adopted a resolution on 25 April 2007 and the European Economic and Social Committee an opinion pdf on 26 October 2006
  • See also the contributions received during the public consultation on the Green Paper

Studies prepared for the Commission

Key Court cases

Key Court cases The European Court of Justice held in several instances and contexts that anyone who suffered harm through an infringement of the EU antitrust rules is entitled to full compensation, and that national rules should ensure the effectiveness of this right. See for instance:

  
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